Ombongi (Suing as Legal Representatives of the Estate of of Robert Nyairo Otieno (Deceased)) v Muriithi (Civil Appeal E143 of 2025) [2026] KEHC 9667 (KLR) (2 July 2026) (Judgment)

Ombongi (Suing as Legal Representatives of the Estate of of Robert Nyairo Otieno (Deceased)) v Muriithi (Civil Appeal E143 of 2025) [2026] KEHC 9667 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9667 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E143 of 2025 AM Okutoyi, J July 2, 2026 Between Christine Kemunto Ombongi (Suing as Legal Representatives of the Estate of of Robert Nyairo Otieno (Deceased)) Appellant and John Gituri Muriithi Respondent (Being an appeal from the judgment and decree of Hon. Rono (SRM) delivered on the 9th of September 2025 in Ogembo Civil Suit No. E099 of 2023) Judgment Background of the appeal 1.This appeal emanates from a fatal road traffic accident that occurred on 25th February 2023 where the deceased Robert Nyairo Otieno was travelling as a passenger in motor vehicle registration number KCM 865 H, when another motor vehicle registration number KBA 023P, belonging to the Respondent collided with the motor vehicle in which the deceased was on board consequently leading to fatal injuries. 2.At the trial court, the Appellant relied on two witnesses: PWI, CPL Joan Achieng’ who testified as to how the accident of 25/2/2023 occurred involving motor vehicle KBA 023P belonging to the Respondent and Motor vehicle KCM 865 H where the Appellant was a passenger together with three others. She testified that the driver of KBA 023 P was found to be liable, at fault, subsequently arraigned under the traffic court, pleaded guilty and was fined. PW1 produced police abstract to this effect. 3.PW2, Christine Kemunto, the Appellant, adopted her witness statement as evidence in chief indicating that her husband died in a road traffic accident that occurred on 25/2/2023. She produced a bundle of documents as exhibits namely; death certificate, grant ad litem, post mortem, birth certificate for minor, deceased transcripts, deceased letter of appointment, bundle of receipts, chief’s letter, demand letter and an NTSA search. 4.The Respondent did not produce any witnesses and closed their case. Parties then filed written submissions. 5.The learned trial Magistrate at the trial court delivered a judgement on 9th September 2025 attributing 100% liability to the Respondent and awarding the Appellant as follows: special damages Kshs.174,550/=, pain and suffering Kshs.60,000/=, Loss of Expectation of Life Kshs.100,000/= and Loss of Dependency Kshs.2,000,000/=. 6.Aggrieved with the decision of the trial court Magistrate, the Appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact in awarding the Appellant a global sum of Kshs. 2,000,000/=, which award was inordinately low as to amount to an erroneous sum; grossly misdirected himself in treating the evidence and submissions before him superficially and arriving at the wrong conclusion; ignored the principles in awarding quantum and the relevant authorities cited by the Appellant, and arriving at a wrong decision under the Fatal Accident Act. 7.The Appellant therefore prayed for the appeal to be allowed and the judgment of the trial court awarding a global sum of Kshs. 2 million, under the head of loss of dependency, be set aside and be substituted, as well as costs of the appeal. 8.The directions of the court were that the appeal be canvassed by way of written submissions. Appellant’s Submissions 9.The Appellant supported her appeal with written submissions dated 3rd of March 2026 focusing on the global award sum of Kshs. 2 million awarded by the trial court. Citing several authorities, the Appellant urged this court to adopt the Multiplicand/multiplier method noting that the deceased was employed by the Teachers Service Commission and had proved his monthly earnings as a secondary school teacher. Respondent’s Submissions 10.The Respondent on their side, through their written submissions dated 12th March of 2025, opposed the appeal and argued that the trial court rightly used the right principles in awarding under the heading of Loss of dependency. Citing various authorities, the Respondent submitted that the Plaintiff had not demonstrated the actual income of the deceased at the time of the demise, hence could not support the use of the multiplier approach. As such, the Respondent called for the dismissal of the appeal with costs. Analysis and Determination 11.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 12.I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. It is not disputed that the deceased died at 30 years of age and was survived by his wife and child who are lawful dependents within the meaning of the Fatal Accident’s Act. 13.The main issue that has been raised at the appeal is on the trial court’s global award sum of Kshs. 2,000,000/= under the head of loss of dependency. 14.Having deciphered through the appeal record, the following are hence the main issues for the determination of the Court:a.Whether the learned trial Magistrate properly evaluated the evidence regarding the deceased’s occupation and earnings before declining to adopt the multiplier approach.b.Whether the learned trial Magistrate exercised his discretion on the correct legal principles in adopting a global award of Kshs. 2,000,000/= for the loss of dependency.c.Whether the trial court’s award warrants interference by this court Whether the learned trial magistrate properly evaluated the evidence regarding the deceased’s occupation and earnings before declining to adopt the multiplier approach 15.A claim for loss of dependency is brought under the Fatal Accident’s Act for the benefit of the dependents of the deceased. The purpose of this award is to compensate the dependents for the pecuniary benefit they reasonably expected to receive from the deceased had death not occurred. 16.The set formula for assessing this loss of dependency is Multiplicand x Multiplier x Dependency Ration. The Multiplicand represents the deceased’s income, the multiplier represents the expected remaining working years and the dependency ratio reflects the portion of the deceased’s income that would probably have been spent on the dependents. 17.This court has carefully analysed and re-evaluated the evidence on record. The Appellant submits that the learned trial Magistrate superficially considered the evidence adduced particularly that the letter from the Teachers Service Commission proved employment. The Appellant argues that based on this letter, then the court ought to have adopted the salary as the multiplicand. 18.I have carefully considered that submission. A cursory perusal of the record indeed indicates that the Teachers Service Commission (TSC) had forwarded to the deceased on 13/11/2019 a letter of offer of employment at Bishop Mugendi Nyakegogi Secondary School as a Secondary Teacher II to teach Biology/ Agriculture. 19.The letter indicates that subject to acceptance, the deceased is appointed on probation in the service of TSC and that he should report not later than 30 days from the date of the letter. The salary scales is given as Kshs. 395,856/ p.a.= on T scale (Kshs. 395,856/= p.a. to Kshs 511,704 p.a.) 20.This letter indicates a probation period of six months whereafter the deceased to apply to the TSC for confirmation of appointment. 21.The Appellant equally testifies through her written statement that the deceased was employed as a teacher with the TSC earning Kshs. 45,599/= per month. 22.This is the only piece of evidence availed by the Appellant to prove employment and income. I am in agreement with the trial Magistrate that the court is unable to ascertain whether he accepted the offer and reported within the stipulated timelines of 30 days, whether he passed his probation and subsequently had his employment confirmed and what his actual income at the time of death was. 23.Employment by the TSC is a formal one and it is reasonably expected that they would be other forms of documentary evidence to support the assertions by the Appellant. The letter was dated 2019, the untimely death of the deceased was in 2023, there was nothing that was adduced by the Appellant to support the claim of the deceased employment with TSC during this period. 24.While this court agrees that documentary proof of earnings need not to be confirmed to pay slips, and indeed the law does not insist on any particular form of evidence, the burden nevertheless remained upon the Appellant under Sections 107 and 108 of the Evidence Act to place before the court sufficient evidence from which the deceased’s actual earnings as at the time of death could reasonably be ascertained. 25.The trial court can therefore not be faulted for concluding that although the evidence demonstrated probable employment, it did not establish the multiplicand with sufficient certainty to warrant a strict multiplier calculation. 26.The Appellant’s ground that the evidence was treated superficially is therefore not borne out by the record. The judgement indicates that the Magistrate appreciated the contents of the TSC letter, evaluated its evidential value and explained why it was found to be insufficient for purposes of adopting the multiplicand approach. 27.I therefore find no misdirection in the evaluation of the evidence. Whether the learned trial Magistrate exercised his discretion on the correct legal principles in adopting a global award 28.The law relating to assessment of damages for loss of dependency is now settled. The multiplier approach remains the conventional method of assessment where the court is able to ascertain, with reasonable certainty the deceased’s income, dependency ratio and probable working life. 29.However, it is not the only permissible approach and is not a mandatory rule of law. It is only a method of assessment. Where the evidence does not permit the court to ascertain income, the court may adopt a global sum. 30.In resorting to the lump sum principle, a trial court should be guided by the age of a deceased, the expected length of dependency and the estimated income. The award should not be so inordinately high or low as to be a wrong estimate of damages. 31.In the case of Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa) Ltd & Another the courts stated that:“The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation. Where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.” 32.This was reiterated in the case of Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another (2014) KECA 224 (KLR) where the court of appeal accepted that the choice of multiplier and the mode of assessments are matters of judicial discretion, provided the discretion is exercised judiciously and on evidence. 33.Likewise in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & others (1986) KLR 457, the Court of Appeal recognized that damages under the Fatal Accident’s Act cannot be assessed with mathematical precision and that courts should strive for reasonable compensation on the evidence available. 34.Applying these principles to the present appeal, I find that the learned trial Magistrate correctly appreciated that dependency had been proved. Equally it was appreciated that the precise income capable of supporting a multiplier assessment had not been proved with sufficient certainty. 35.I therefore find no fault in the trial Magistrate faced with the above circumstances to adopt a global award. Whether the trial court’s award warrants interference by this court 36.As an appellate court, I can only interfere with an award of damages where the trial court acted on a wrong principle of law, misapprehended the evidence or where the award is so inordinately high or low as to represent an erroneous estimate of the damage suffered. 37.These principles were espoused in the case of Butt v Khan 1982 -1988 1 KAR where the court pronounced itself as follows:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 38.These authorities underscore that the appellate jurisdiction is supervisory rather than substitutive. The Appellant contends that the trial court’s award of Kshs. 2,000,000/- was inordinately low. 39.In assessing this claim, this court is guided by the principle that comparable circumstances should attract comparable awards, while bearing in mind the inflation and the unique facts of each case. 40.In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (suing as the personal representative of the estate of mercy Nzula Maina (deceased) (2016) eKLR the courts observed that where the multiplicand cannot be established with precision, the court is entitled to make a global award informed by the circumstances of the case rather than engage in speculative mathematical calculations. 41.The Courts have consistently recognized that the global approach is not a lesser form of compensation but an equally legitimate method where evidence does not permit precise computation. 42.The Respondent at the trial court cited the case of John Macharia Mwangi vs Josephat Muriungi Muguongo & Another (suing as the legal representative of the estate of Christine Nkirote Muriungi (deceased) (2020) eKLR where the courts awarded Kshs. 1,000,000/= under the head of loss of dependency to the estate of the deceased a 31-year-old survived by two children and supported by a father. 43.The trial Magistrate cited several comparative authorities where the courts under the loss of dependency awarded amounts ranging from Kshs. 700,000/= to Kshs. 2,000.0000/= which guided the final award given to the Appellant in this case. 44.Taking into consideration the above comparative awards and coupled with the fact that the deceased was 30 years old, has left behind a widow and a child, there was credible evidence pointing to gainful employment as a teacher, though insufficient to establish his actual earning with the certainty required for a multiplier assessment, then I have no basis to interfere with the learned trial court Magistrates award of Kshs.2,000,000/= Disposition 45.Consequently, this court make the following orders;a.That the appeal is dismissed in its entirety with costs to the Respondent.b.The award by the trial court of Kshs. 2,000,000/= under the head of loss of dependency is hereby upheld.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026.A. M. OKUTOYIJUDGEIn the Presence of:Ms. Gogi for the Appellant.Mr. Oduor for the Respondent.Ruth Mokeira-Court Assistant.