https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10086

Kasavi v Muli (Suing as the personal representative of the Estate of Bonface Nwelelu Muli - Deceased) (Civil Appeal E177 of 2024) [2026] KEHC 10086 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10086 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E177 of 2024 EO Bitta, J July 9, 2026 Between George Kioko Kasavi Appellant and Daniel Mbithi Muli (Suing as the personal representative of the Estate of Bonface Nwelelu Muli - Deceased) Respondent (Being an appeal from a partial appeal against the judgment delivered by Hon. Khaponya S. Benson on 12th June 2024 in CMCC No. 262 of 2025 in the Magistrate's Court at Kithimani.) Judgment 1.The appeal is a partial appeal against the judgment delivered by Hon. Khaponya S. Benson on 12th June 2024 in CMCC No. 262 of 2025 in the Magistrate's Court at Kithimani. 2.The Appeal does not challenge the apportionment of liability: it relates to the quantum awarded as damages and how that was arrived at. 3.The trial court apportioned liability at the ratio of 70:30 between the Plaintiff /Respondent and the Defendant/Appellant and awarded damages as follows:a.Pain and suffering – KShs 50,000/=b.Loss of expectation of life – KShs 100,000/=c.Loss of dependency – KShs 1,800,000/=d.Less contribution – KShs 585,000/=e.Add special damages – KShs 15,650/=Total Award – KShs 1,380,650/= 4.The Appellant cites eight grounds in support of his appeal, viz,a.The trial court erred in law and fact by failing to comply with the requirement of Order 21 Rule 4 of the Civil Procedure Act in writing the judgment.b.The trial court erred in law and fact in failing to give his reasoning for the award on loss of expectation of lifec.The trial court erred in law and in fact in failing to give the multiplicand used in the assessment of damage under the Fatal Accident Act.d.The trial court erred in law and fact in failing to give the multiplier as applied in assessing damages under the Fatal Accident Act.e.The trial court erred in law and fact in failing to consider the Appellant’s written submissions together with the authorities on quantum and applicable principles for assessment of damage.f.The trial court erred in law and fact in failing to evaluate the Appellant’s submissions together with the authorities cited and gave no justification for the award giveng.The trial court erred in fact and in law in awarding the Appellant Kshs 1,800,000/- as damages under the Fatal Accidents Act, which award was not supported by any authority 5.The Appellant cited the duty of a first appellate court as stated in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR and Peter Kanithi Kimunya v Aden Guyo Haro (2014) eKLR, where Aburili J. stated:“I am mindful of my duty as an appellate court, which duty is grounded in Section 78 of the Civil Procedure Act, to evaluate and consider the evidence and the law and exercise, as nearly as may be, the powers and duties of the court of original jurisdiction and come to my own conclusion. In doing so, however, I must give allowance to the fact that I neither saw nor heard the witnesses as they testified." 6.The Appellant is dissatisfied with the trial court's decision regarding the assessment of the quantum of damages and the form of the judgment. 7.The Appellant relied on Order 21 Rule 4 of the Civil Procedure Rules, 2010, which provides:“Judgments in a defended suit shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision." 8.The Appellant argued that the trial court failed to give reasons for its determination, particularly on the issue of quantum of damages, as evident from the judgment. Consequently, the Appellant submitted that the lower court's decision was not a valid judgment and ought to be set aside. 9.In support of this argument, the Appellant relied on Philip Mururi Ndaruga v Gatembu Housing Co-operative Society (2016) eKLR and South Nyanza Sugar Company Limited v Omwando (2011) eKLR, where the courts held that such a ground alone is sufficient to dispose of an appeal. 10.The Appellant therefore urged the court to set aside the lower court's purported judgment. 11.The Appellant submitted that the trial court neither applied the multiplicand-multiplier approach nor the global sum approach in assessing damages, and that it failed to justify the award of KShs 1,800,000/= under the head of loss of dependency. 12.As a consequence of which, the Appellant argued that the award was erroneous and ought to be set aside or varied as the court deemed fit. 13.The Appellant reiterated his submissions on assessment of damages that had been filed before the trial court, appearing at pages 75–135 of the Record of Appeal. 14.The Appellant submitted that the deceased died at 30 years of age in the year 2018 and had no formal employment. 15.The Appellant submitted that the deceased's death certificate described him as a casual labourer. 16.The Appellant further argued that the deceased's estate failed to produce any evidence of his earnings before his death. 17.The Appellant submitted that where a deceased person's income is unknown, the court should adopt the applicable minimum wage. 18.The Appellant argued that the trial court ought to have adopted the minimum wage for a general labourer under the Regulation of Wages (General) (Amendment) Order, 2018, which was applicable at the time of the deceased's death. 19.Since the deceased resided in Machakos and died on 31st December 2018, the applicable multiplicand should have been KShs 7,240.95. 20.In the alternative, the Appellant urged the court to adopt the global sum approach when assessing loss of dependency. 21.The Appellant relied on Maina v Njuguna & Another (suing as legal representatives of the Estate of Julius Kamande Muchoki (Deceased)) & Another, Civil Appeal No. 189 of 2019 (2023) KEHC 21128 (KLR), where the court held that the global sum approach was appropriate where the deceased's monthly income had not been established and that the trial magistrate had not erred in adopting that approach. 22.The Appellant further submitted that the principles governing interference with an award of damages by an appellate court include whether:a.the trial court acted under a mistake of law;b.the trial court acted in disregard of legal principles;c.the trial court took into account irrelevant matters or failed to consider relevant matters;d.the trial court acted under a misapprehension of the facts;e.injustice would result if the appellate court failed to interfere; orf.the award was so inordinately high or low as to represent an erroneous estimate of damages. 23.In support of these principles, the Appellant relied on Joseph Njogu Kamunge v Charles Muriuki Gachori, Civil Appeal No. 42 of 2014, and Kemfro Africa Ltd t/a Meru Express Service & Another v A.M. Lubia & Another (1982–88) 1 KAR 727. 24.The Appellant argued that the award of KShs 1,800,000/= for loss of dependency was manifestly excessive, considering that the deceased died unmarried, had no children, and left no dependants. 25.The Appellant proposed that a reasonable award would have been KShs 579,276/=, calculated using a dependency ratio of one-third as follows:KShs 7,240.95 × 12 × 20 years × 1/3 = KShs 579,276/= 26.The Appellant relied on Joseph Njuguna Mwaura v Builders Den Limited & Another (2014) eKLR, where the court adopted a multiplier of 17 years for a deceased aged 35 years. 27.The Appellant submitted that, given Kenya's average life expectancy of about 50 years, a 20-year multiplier would have been appropriate for the deceased. 28.The Appellant also contended that the trial court failed to consider its submissions on the mistaken assumption that none had been filed. 29.Accordingly, the Appellant prayed that the award for loss of dependency be varied and reduced to KShs 579,276/=, subject to the 30% contributory negligence, and that the costs of the appeal be awarded to the Appellant. 30.In response to Grounds 1, 2, 3, 4, and 5 of the Memorandum of Appeal, the Respondent submitted that the trial court fully complied with the requirements of Order 21 Rule 4 of the Civil Procedure Rules, 2010, by carefully analysing the evidence, documentary exhibits, submissions, and authorities before arriving at its decision. 31.Regarding Grounds 6 and 7, the Respondent submitted that the trial court correctly observed that the Appellant had not filed submissions despite having been granted sufficient time to do so; therefore, the Appellant could not legitimately complain that its submissions had not been considered. 32.On the award of KShs 1,800,000/= for loss of dependency, the Respondent submitted that it had relied on several authorities and that the trial court expressly cited those authorities in its judgment. 33.The Respondent further submitted that the deceased was 30 years old and, but for the accident, could reasonably have been expected to live up to the age of 70 years. 34.The Respondent maintained that the Appellant had failed to demonstrate any basis upon which the award should be disturbed. 35.Having considered the Memorandum of Appeal, the Record of Appeal, and the parties' respective submissions, the following issues arise for determination: 36.Whether the trial court's judgment complied with the requirements of Order 21 Rule 4 of the Civil Procedure Rules. 37.Whether the trial court applied the correct principles in assessing damages, particularly the award of KShs 1,800,000/= for loss of dependency, and whether that award warrants interference by this Court. 38.Who should bear the costs of the appeal?“Order 21 Rule 4 of the Civil Procedure Rules provides that “judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision” 39.The Appellant, as can be deduced from the grounds set out in his memorandum of appeal, is aggrieved that the trial court did not explain/give reasons on how he arrived at the figure of KShs 1,800,000/- as damages for loss of dependency. 40.I have perused the Record of Appeal, especially the Judgment of the trial court, which runs from page 156 to 160 of the record. 41.The determination of the trial court is contained in a single paragraph on page 159, where the learned magistrate rendered himself thus:"Having carefully perused and considered the pleadings and submissions filed by Counsel, the nature of injuries sustained by the Plaintiff and case authorities of comparable injuries supplied to court, evidence tendered on the record of court and the circumstances of this case, the rate of inflation and the fact that no amount of money can adequately compensate the plaintiff for injuries sustained, I proceed to enter judgment in favour of the plaintiff against the defendants in the following terms:Liability is apportioned at 70%: 30% in favour of the Plaintiff as against the defendantsQuantumPain and suffering kshs 50,000/-Loss of expectation of life khs 100,000/-Loss of dependency kshs 1800,000/-Less 30% kshs 540,000/-Special damages kshs 15,650/-Judgment is hereby entered in favour of the Plaintiff against the Defendant in the sum of Kshs 1,325,650/-" 42.On the face of it, I am inclined to agree with the Appellant that the learned Magistrate did not give reasons on how he arrived at the sum of Kshs 1,800, 000/- for loss of dependency. 43.Unlike damages for pain and suffering and loss of expectation of life that are generally provided to range between more or less defined parameters, damages for loss of expectation of life are distinctly case-specific, though guided by settled criteria. 44.Whereas a court has the discretion to apply one of two ways of awarding damages for loss of expectation of life that are either using the multiplicand and multiplier method or the global sum method, the trial court in this case did not explain which method was employed and why. So one is left wondering what method was used and how the trial court, employing that method, arrived at the figure of Kshs 1,800,000/- for loss of dependency. 45.One is left guessing what principles the trial court considered, what factors were omitted, whether they were relevant factors or irrelevant factors, whether the amount was relatively high or relatively low, and what comparable cases were these that the trial court used and when those cases were decided. 46.The upshot is that I find that the trial court did not comply with the provisions of Order 21 Rule 4 in assessing the damages for loss of dependency. 47.On the second issue of assessment of damages, I note that the Appellants are only challenging the damages awarded for loss of dependency, so I will confine myself to that. 48.Having found that the assessment was not explained and therefore arbitrary, not knowing what principles or factors the trial court considered, I will set it aside and proceed to make an independent assessment on the award. 49.Both parties seem to have preferred the multiplier-multiplicand method; the Respondent, who was the Plaintiff in the trial court, submitted that the deceased was 30 years old at the time of his death, he was unmarried, a casual laborer earning kshs 20,000/-minimum wage per month, the Respondent proposed a multiplier of 40 for the reason that the deceased would have lived past the God given 70 years, he was not in formal employment therefore not subject to the retirement age. 50.The Respondent relied on the decision of Pauline Kuloba Mwadime vs Duncan Mwandago Mwikambo HCCC No. 2774 of 1992 by Mwera J, where the deceased died at age 35 and a multiplier of 20 years was adopted. 51.The Appellant, for his part, has proposed a multiplier of 20 years for the reason that the deceased died aged 30 years, and life expectancy in Kenya is 50 years; the Appellant has cited the decision of the Court in Joseph Njuguna Mwaura vs Builders Den Limited and another (2014) e KLR where the court adopted a multiplier of 17 years for a 35-year-old deceased. 52.The Appellant submitted that since the deceased’s wages were unknown, the court should adopt the minimum wage for a general labourer as per the Regulation of Wages (Amendment) Order 2018 which was applicable at the time of the deceased’s death, and that the deceased was a resident of Machakos and died on the 31st day of December 2018. The minimum wage was kshs 7, 240.95/- at the material time, which amount the Appellant proposes be used as the multiplicand. 53.Both parties are in agreement that the dependency ratio to be applied is 1/3, as the deceased was unmarried and had no children. 54.In this case, there was no proof of the deceased’s income, which could not be ascertained. 55.Where there is no proof of income, the court may resort to the minimum wage applicable to the deceased at the time of his death, as was held in Gachoki Gathuri Suing as legal representative of the estate of James Kinyua Gachoki (Deceased) vs John Ndiga Njagi Timothy and 2 others (2015) eKLR. 56.I will adopt the gazetted minimum wage for all other areas, as per Legal Notice No. 2 in the Special Issue of the Kenya Gazette, Supplement No.1 of 8th January 2019, which provided for the application of the wages from 1st May 2018. Schedule 2 under General labourer at column 9, it provides that the minimum wage is Kshs 7,240.95 per month. 57.On multiplier, given that the deceased was only 30 years old, was in good health and engaged in gainful employment as a casual labourer, a multiplier of 30 years is fair and reasonable. 58.It adequately reflects the balance between the deceased's remaining working life and the recognised contingencies and vicissitudes of life. 59.Our courts have approved multipliers of around 30 years for young adults engaged in informal or casual employment, as illustrated in several cases such as Mutinda (Deceased) v Maraga t/a Mwamasaburi Hydrotech Services & another [2023] KEHC 18009 (KLR), Dijitech Enterprises Limited & another v Nyakeno & another [2025] KEHC 2714 (KLR). 60.The amount for loss of dependency will be Kshs 7,240.95x12x30x1/3=868,914 61.On the issue of costs, because the appeal partially succeeds, I think it fair for each party to bear their own costs. Consequently, I order thata.The award of Kshs 1,800,000/- for loss of expectation of life is hereby set aside and substituted with an award of Kshs 868,914/-b.Each party will bear their costs. DELIVERED VIA MICROSOFT TEAMS, DATED AND SIGNED ON THIS 9TH DAY OF JULY 2026 AT MOMBASAEMMANUEL BITTAJUDGE OF THE HIGH COURTIn the presence of:C/A SalwaAlividza for the AppellantGachimu for the Respondent