Nzomo v Muia & another (Civil Appeal E106 of 2024) [2026] KEHC 7173 (KLR) (22 May 2026) (Judgment)

Nzomo v Muia & another (Civil Appeal E106 of 2024) [2026] KEHC 7173 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7173 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E106 of 2024 BM Musyoki, J May 22, 2026 Between Florian Mwikali Nzomo Appellant and Francis Kioko Muia 1st Respondent Rose Mbete Masesi 2nd Respondent (An appeal from part of judgment and decree in the Chief Magistrate’s Court at Mavoko (Hon. S. Jalang’o PM) civil case number E738 of 2022 dated 14-03-2024) Judgment 1.The respondents instituted the lower court suit against the appellant seeking compensation on behalf of the estate of Ezekiel Muia Kilonzo (hereinafter referred to as ‘the deceased’). The deceased died in a road traffic accident on 10-07-2022 while riding motor cycle registration number KMGA 004A which collided with motor vehicle registration number KBR 715Z which belonged to the respondent. After the trial, the court awarded the respondents damages as follows;a.Pain and suffering Kshs 50,000.00b.Loss of expectation of life Kshs 150,000.00c.Loss of dependency Kshs 4,200,000.00d.Special damages Kshs 35,100.00 2.In arriving at the loss of dependency, the trial court adopted a multiplier of 35 years, multiplicand of 20,000.00 and dependency ratio of 1/2. It is this award which aggrieved the appellant who has approached this court through memorandum of appeal dated 8-04-2024 which lists the following grounds;1.That the learned Magistrate erred in law and fact in awarding Kshs. 4,200,000/= as damages for loss of dependency as the said award is excessively high in the circumstances given the facts and evidence before the Honourable Court.2.That the learned Magistrate erred both in law and fact in making an award on quantum for lost years/loss of dependency which is too high and was not supported by relevant authorities, guided by the doctrine of precedent, case law of similar facts and without any proof of his earnings.3.That the learned Magistrate erred in law and facts by adopting a multiplier of 35 years in a case where the deceased was 22 years and failed to appreciate the vagaries and vicissitudes of life leading to an award that was excessive under the circumstances.4.That the learned Magistrate erred in law and facts by failing to properly scrutinize and evaluate the submissions by the appellant and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of award of general damages on lost years.5.That the learned trial Magistrate misapprehended the appellant’s submissions by failing to award a fairer award under the loss of dependency that would have been ideal under the circumstances of the case herein.6.That the learned trial Magistrate erred in law and facts by failing to properly relate the facts of the case to the submissions especially on the deceased lack of any proof of earnings and failed to adopt the Regulation of Wages (General) (Amendment) Order 2022 of Kshs 14,025/= which would have been relevant and instead adopted Kshs 20,000/= that was excessive. 3.The factors which determine the quantum of loss of dependency are the multiplier, the multiplicand and the dependency ratio. The multiplier is the number of years which the court assumes the deceased would have worked if he had lived were it not for the accident in question. It is determined as a matter of discretion but the court must take into consideration that the deceased could also die out of other causes and therefore discount some years since the amount is being given in lumpsum unlike if it were to come on monthly or periodic instalments. 4.The multiplicand is the amount which the court adopts as what the deceased would have been earning per year had they he lived but for the accident. This sum may be determined from documentation or assumptions based on the circumstances of the case, the nature of work the deceased used to do and any law in force that regulates earnings in specific categories. 5.The dependency ratio is the percentage of the proved or adopted multiplicand that the deceased would have spent towards the upkeep, help or maintenance of their dependants. The dependency is a matter of fact which must be demonstrated on a balance of probabilities because the award is in form of compensation for what the dependants lost and not definite legal provision or entitlement. 6.As stated earlier, this appeal is on the damages on loss of dependency only. I have read the submissions of the appellant dated 11-08-2025 and those of the respondents dated 6-11-2025. The appellant proposes that the court should have adopted the global approach instead of the multiplier and multiplicand approach. The appellant adds that in the alternative, this court should consider that there was no proof of income and apply the statutory minimum wage for a general labourer and also reduce the multiplier to 20 years. 7.The 2nd respondent had testified that the deceased who died at 22 years was in good health and spirit at the time of his death and had enrolled for an electrical course at Katoloni Technical Training College where he had completed but not graduated due to fees arrears with intention of raising fees later to enable him graduate. She added that the deceased’s father had bought him a motor bike for transport business which fetched him Kshs 20,000.00. She stated that the deceased used to support the family by giving them Kshs 10,000.00 every month. 8.The trial court in adopting the multiplier of 35 years stated that the deceased would have enjoyed working life beyond 60 years because he was in the informal sector which does not have a retirement age. It appears to me as speculative to say that the deceased would have been in the informal sector throughout his live because the 2nd respondent had stated that the deceased’s intention was to go back to college and graduate. It would be doubtful that a graduate in electrical training from a technical college would continue working as a motor bike rider. If indeed the deceased was in a mission to raise college fees to enable him graduate, it means that he had chosen a career in electrical field. 9.In addition to the above, the respondents did not produce any evidence that the deceased had attended the said technical college. Actually, there is no proof of any level of education which would enable the court to even assume that he had a vision of being an electrical technician. At least an admission letter to the college or some results slips would have helped the situation but none was produced. It will be setting a bad precedent if this court were to accept mere statement from a witness as proof of a deceased person’s career path. 10.It is also my position that based on the evidence produced in court, there was nothing that was in support of the deceased’s income. The trial court did not give reasons for its adopting Kshs 20,000.00 as the monthly income. The respondents did not produce anything to show that the deceased used to earn any sum neither was there evidence to show that he used to do any work related to motor bicycle transport business. There was also no proof that he was even qualified or licensed as a motor cycle rider. In my view, before a court adopts a multiplicand, there must be a basis for the same but not mere assumption or plucking of figures from the air. 11.In cases where there is no evidence of earning or clear basis of adopting a specific figure as the earnings, the court has two options but of course it should go for the more appropriate one. It may, depending on the circumstances of the case adopt the multiplier approach factoring in the statutory minimum wage. The second option is to adopt the global approach. 12.As I have stated earlier, there was no proof that the deceased was engaged in any income generating activity. There is also no basis for the court to adopt or apply the statutory minimum wage because the respondents did not demonstrate the kind of work the deceased was engaged in. In the circumstances, it was, in my opinion, too speculative for the trial court to adopt the multiplier approach. The appropriate approach was the global approach. 13.The appellant has submitted that an award of Kshs 1,000,000.00 would be adequate in this case and cited the case of Nzuki v Maithya & another (suing as the lags representative of the estate Joseph Wambua [2024] KEHC 2752 (KLR) where Kshs 1,000,000.00 was awarded in respect of the deceased who died aged 17 years; John Mwangi Macharia v Jeniffer Keiya Mutegi [2020] eKLR where estate of deceased who died at 18 years was awarded Kshs 900,000.00 and Ngila & another v Musili & another (suing as legal representatives of the estate of the ate Isika Musili) [2022] KEHC 12991 (KLR), where Kshs 900,000.00 was awarded. 14.On their part, the respondents submit that the appellant did not plead the aspect of multiplier and global approach in its memorandum of appeal and as such the submissions along that line should be disregarded. They also argue that the global approach is used where the deceased was a minor and the appropriate approach where the deceased was an adult is the multiplier approach. 15.It is true that a party should not be allowed to argue grounds of appeal which are not in the memorandum of appeal pursuant to Rule 4 of Order 42 of the Civil Procedure Rules. It is also true that the appellant has not mentioned in its memorandum of appeal that the global approach was more appropriate than the multiplier approach. However, in ground 2, the appellant pleaded an error of failure to be guided by precedent and failure to consider that there was no proof of earnings. Whether to adopt either of the approaches is a matter of judicial precedence and proper exercise of judicial discretion. A pleading need not mention or use specific words of the complaint a party has with a certain state of affairs as long as the issue can be ascertained from the facts pleaded. It is all a matter of choice of words and if a party can fit their arguments within the meaning of what is pleaded, they should not be prevented from making submissions coverings that aspect. 16.Having said the above, I have considered the authorities cited by the by the appellant as well as the following;a.Mwangi & another v Muya & another (Suing as legal representatives of the Estate of Samuel Mutunga Mutua (Deceased)) [2023] KEHC 24032 (KLR). In this case, the Honourable Lady Justice F. Muchemi upheld award of the lower court where Kshs 1,500,000.00 was awarded for a deceased who died at 21 years.b.Mwihaki (Suing as the personal representative of the Estate of Brian Ngure Ndung’u (Deceased) v Lengete [2023] KEHC 26603 (KLR), in which a sum of Kshs 2,000,000.00 was awarded to the estate of the deceased who died at 21 years and was self-employed. 17.I have noted that the authorities cited by the appellant involved minors whose future had not been clear on what they aspired to be. In this matter although there was no evidence of the deceased’s level of income, at least the court notes that he was likely working for his life. I have also considered that the deceased’s parents are dependants pursuant to Section 4(1) of the Fatal Accidents Act and that siblings are not dependants as per the said Section. Doing all that I can, I am minded to give a global award of Kshs 1,500,000.00. 18.Consequently, this appeal is allowed to the extent that the award on loss of dependency is hereby set aside and substituted for a global award of Kshs 1,500,000.00. The rest of the awards shall remain as given by the trial court. The appellant shall have the costs of this appeal but the respondents will have the costs of the suit in the subordinate court. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Nyabugah for the appellant and Miss Mutuku holding brief for Mr. Thiong’o for the respondent.