https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6781

Machome v Odoro & another (Suing as the legal representative of the Estate of the Late Jacob Odhiambo Otieno) (Civil Appeal E001 of 2024) [2026] KEHC 6781 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6781 (KLR) Republic of Kenya In the High Court at Migori Civil Appeal E001 of 2024 DKN Magare, J May 15, 2026 Between Bokeye Zachary Machome Appellant and Cynthia Awuor Odoro & Joshua Ouma Abuor (Suing as the legal representative of the Estate of the Late Jacob Odhiambo Otieno) Respondent Judgment 1.This is an Appeal from the Judgment and Decree of Hon. S. Mutava Resident Magistrate dated 20.9.2023 arising from Rongo PMCC No. E020 of 2022. The Appellant filed the Appeal is against liability and the award of damages in this fatal accident claim. Subsequently, the Respondent filed a cross appeal on quantum only as regards one limb, loss of dependency. The Appellant withdrew the Appeal. Before the court for determination is therefore the cross appeal which challenged only the applied multiplicand and multiplier. 2.The Plaint dated 15.2.2022 claimed damages arising from an accident that occurred on 1.10.2021. The accident involved the deceased who was a passenger motor vehicle registration no. KCQ 545L along Rongo-Awendo Road at Geti Area when the said motor vehicle was driven negligently and it lost control and rammed into a stationery motor vehicle parked beside the road causing the deceased fatal injuries. 3.The Respondent set forth particulars of negligence for the accident motor vehicle and pleaded General Damages under the Law Reform Act and Fatal Accidents Act. 4.The Appellant entered appearance and filed Defence denying the particulars of negligence and injuries pleaded in the Plaint. 5.The lower court heard the parties and proceeded to render the impugned judgement in which the Court found liability at 100% and awarded Ksh. 30,000/- for pain and suffering, Ksh. 2,865,600/- for loss of dependency, Ksh. 100,000/- for loss of expectation of life. Evidence 6.During the hearing, PW1 was Cynthia Owuor. She relied on her filed witness statement. She testified that the deceased was her husband was the sole bread winner and they had one daughter aged 2 years. the deceased was in employment with G4S earning a sum of Ksh. 42,889.67. he was aged 28 years at the time of his demise. the widow was born in 1995, making her 26 years at the time of demise of the deceased. as the pay slip produced. 7.PW2 was Kennedy Onyango was an eye witness. PW3 was No. 97939 PC Clinton Owino who produced a police abstract and sketch plan.DW1, Eliud Muturi was a driver of the accident motor vehicle. it is unnecessary to go into the evidence as the issue relates to damages for loss of dependency only. Submissions 8.The Appellant filed submissions dated 12.1.2026. On quantum, it was submitted that a multiplier of 15 years was proper. It was also submitted that the salary adopted by the court leading to a multiplicand of Ksh. 23,880/= was proper. However, it was the submission of the Appellant that the award based on dependency ratio of 2/3 was erroneous as it ought to have based on 1/3. The they cited Board of Governers Of Kangubiri Girls High School & Another Vs Jane Wanjiku Muriithi & Another [2014] eKLR. However, the later argument is otiose, having withdrawn their appeal. As was held by Odunga J (as he then was) in J W N v Kassam Hauliers Limited [2020] eKLR17.Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ratio of 2/3. On the other had they have taken unmarried people to spend more on themselves more than their dependents more so parents hence have apportioned a dependency ratio of 1/3 which has over time been enhanced to 1/2. In this case it was submitted that as the deceased was married with 3 children he spent more on his family than self hence a dependency ratio of 2/3 would suffice. 9.The Respondent filed submissions dated 12.9.2025. It was submitted that the multiplier ought to have been 30 years. Reliance was placed on Alexander Okinda Anangwe v Reuben Muriuki Kaguha & Another 2015 KEHC4269(KLR). It was also submitted that the multiplicand ought to have been Ksh. 35,165/= based on the net earnings. Analysis 10.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. 11.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanor of a witness is inconsistent with the evidence generally.” 12.The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 13.Though the parties submitted on liability, there was no utility since the appeal was withdrawn. The cross appeal was only on quantum since liability was awarded at 100% against the appellant and for the Respondent. 14.The court will thus deal with the issue of the award of quantum only. The nature of general damages were discussed in the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019)eKLR , Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.” 15.The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court. 16.In the case of Henry Hidayo Ilanga versus Manyama Manyoke [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows:In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd, [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge.“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 17.Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. 18.In deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being an exercise of discretion, the exercise should be done judiciously, considering the circumstances, to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows:“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. 19.The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…” 20.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. 21.So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence. 22.To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. 23.The main damages the appeal relates to is loss of dependency. There is no dispute on the dependency ratio despite submissions to the contrary. Submissions are not a basis of making a finding. 24.Mwera J, posited as follows when postulating on what is the role of submissions are. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim in the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 25.Submissions are not, strictly speaking, part of the case, the absence of which may do prejudice to a party. There presence or absence does not in any way prejudice a case as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallize the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 26.The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 27.Further, without pleadings, the court cannot proceed to deal with the dependency ratio. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition:58.In the case of Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & anr, Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR the Supreme Court of India held that [paragraph 8]:….52.Further, the court went on and observed that:“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. 28.The next question is therefore the multiplicand and multiplier. on multiplicand, the respondent produced a payslip showing gross pay of Ksh. 39,269.41. the same is divided as follows:a.gross pay Ksh. 39,269.41b.statutory deductions Ksh. 5,254c.net pay Ksh. 34, 015.41 29.Under loss of dependency, to interfere with the finding of the lower court on loss of dependency, this court has to find basis. The deceased herein was 28 years and was married. He had one child, a minor. There was prove of income. The lower court applied a net salary of Ksh. 23,880/- per month for the month of September 2021. The Respondent’s submission was that the court ought to have applied a multiplier of 30 years and multiplicand of Ksh. 35,165/=. 30.In Joshua Mulinge Itumo (suing for and on behalf of the Estate of Damaris Nduku Musyimi (Deceased) v Bash Hauliers Limited & another [2021] eKLR93 the court stated as doth:In my view, where the deceased had taken some temporary advance or loan, the same ought to be taken into account for the period covered by the facility and not for the entire period which the Court finds as regards the reasonable figure representing so many years purchases, otherwise known as the multiplier. I therefore agree with the Appellant that the learned trial magistrate erred in applying the amount stated in the payslip for the whole period of the multiplier. I agree that the prudent thing to do would have been to apply the net salary (gross salary less only statutory deductions) to get the total dependency sum, then deduct the total sum of the loan balances being the 3 SACCO loans with balances of Kshs. 50,000, Kshs. 657,325/- and Kshs. 251,650/-), a total of Kshs. 958,975/-. If that is done the amount due under the head of loss of dependency would Kshs. 7,011,840/- less total of the loan balances amounting to Kshs. 958,975/- leaving the net balance as Kshs. 6,052,865/-. The appeal therefore succeeds on that ground to that extent. 31.In Nyeri Civil Appeal Number 22 of 2014 - Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Limited [2015) eKLR, the Court of Appeal expressed itself as hereunder:“In this case, there was no complicated record of evidence to evaluate. Only Hellen testified and produced documentary evidence. On the issue of the salary, the deceased’s last pay-slip was produced and it showed clearly his gross earnings of Sh. 39,683. That is followed by no less than 13 deductions ranging from statutory deductions to loan deductions leaving a balance of Sh. 16,036. The trial court used the gross earnings as the multiplicand while the High Court used the net figure. With respect, both courts were in error. In the case of Chunibhai J. Patel and Another v P. F. Hayes and Others [1957] EA 748, 749, the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act which we cite in part as follows:“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependents. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase. (Emphasis added)As emphasized above, the net income determines the multiplicand and it is only net of statutory deductions. In this case, Hellen testified, and it is apparent from the pay-slip, that the net salary after statutory deductions was Sh. 19,373, and indeed counsel for KSSL accepted that figure in his submissions. There is no reason why the High Court should have interfered with that figure.” 32.In Kisumu Civil Appeal Number 48 of 2016 - Mary Osano (Personal Representative of the estate Charles Otwori Ogechi - Deceased) vs. Simon Kimutai [2020] eKLR, the same court stated as follows:“Counsel for the appellant submitted that the deceased’s net pay as evidenced by a copy of his payslip was Kshs 53,550 per month, with a house allowance of Kshs 45,000 per month which totals to Kshs 98,550. The statutory deductions as contained in the payslip are; PA.Y.E at Kshs 23,947; NHIF at Kshs 320 and NSSF at Kshs 3748 which totals to Kshs 28,015. The rest do not amount to statutory deductions as the learned Judge erroneously held. In our assessment, the rest of the deductions were either in the form of savings or payment of loans, none of which are to be factored in when determining a multiplicand.” 33.The deductions relating to Sacco loans are not statutory deductions. Only NHIF, NSSF, Medical scheme and pay are statutory deductions. This means that the net income was Ksh. 34, 015.41. There was no basis for use of sum of 23,880/=. THE deductions related to the Sacco still remain part of the deceased’s income. I therefore set aside the said amount and apply the correct income, of Ksh. 34, 015.41. 34.The Deceased died at 28 years old and would be expected to work until the retirement age. He had a child and a wife. The court awarded a multiplier of 15 years. This was low. He was working as a driver, a job that is risky and exposés him to higher risks and due to vicissitudes of life, the award cannot be said to be so inordinately low as to amount to an erroneous estimate. Therefore, the multiplier is maintained. 35.I find that a multiplier of 20 years would have been proper and I interfere with the judgement to this extend. The Court in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J, as he then was, held at page 248 that:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependents and the chances of life of the deceased and dependents. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.” 36.Based on the given finding, the cross appeal partly succeeds. The award is computed forthwith aa follows:Ksh. 34, 015.41 X 12 X 15 X 2/3 = Ksh. 4,081,849.20/=. 37.The question of costs of the withdrawn appeal were reserved. the appellant shall bear costs of Ksh 85,000/= for the appeal. the respondents shall also have costs of 45,000/= for the cross appeal. Determination 38.In the upshot, I make the following orders: -a.The cross appeal is allowed. The award of general damages for loss of dependency is set aside and substituted thereof with Ksh. 4,081,849.20/=.b.Costs of the appeal of Ksh 85,000/= to the respondentc.The costs of the appeal are awarded to the Respondent/cross appellant assessed at Ksh. 45,000/=.d.30 days stay of executione.14 days right of appeal.f.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI VIRTUALLY ON THIS 15TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -No appearance for the AppellantMs. Migai for the RespondentCourt Assistant- Michael /Martin