Hardley Malema Mulekawi v Flora Akumu Simion & Stephen Arimi Ratanga

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E013 OF 2025** **HARDLEY MALEMA MULEKAWI ……………………………… APPELLANT** **-VERSUS-** **FLORA AKUMU SIMION ……………………………….……… 1ST RESPONDENT** **STEPHEN ARIMI RATANGA …………………………………. 2ND RESPONDENT** ***(Both suing as the legal representatives and Administrators of the estate of REBECCA ADWOLI EDALI – Deceased)*** *(Being an appeal from the judgment and decree of Hon. J. A. Agonda, Principal Magistrate,* *delivered on 23rd January 2025 in Vihiga PMCC No. E298 of 2022)* **Coram: Before Justice R. Nyakundi** **M/S KRK Advocates LLP** **M/s M. A. Okumu & Co. Advocates** **JUDGMENT** **Introduction** 1. This is a first appeal against the judgment and decree of Hon. J. A. Agonda, Principal Magistrate, delivered on 23rd January 2025 in Vihiga Principal Magistrate's Courts Civil Case No. E298 of 2022, a suit arising from a fatal road traffic accident. 2. The appeal is confined to quantum. The finding of liability at 100% against the Appellant is not challenged in the Memorandum of Appeal and is therefore not before me. Equally, no ground of appeal touches on the award of Kshs. 100,000/= for loss of expectation of life or on the trial Court's refusal to award special damages. Those findings must stand. 3. The Appellant was the defendant, and the Respondents were the plaintiffs, in the Subordinate Courts. For convenience I refer to the parties by their designations in this appeal, and to the late Rebecca Adwoli Edali as "the deceased". **The case in the Subordinate Courts** 1. By a plaint dated 17th November 2022 and filed on 14th December 2022, the Respondents, suing as the legal representatives and Administrators of the estate of the deceased, brought a claim under both the Law Reform Act, Cap. 26 and the Fatal Accidents Act, Cap. 32. It was pleaded that on 6th July 2022, along the Luanda–Maseno road at Mwambeba area, the deceased was lawfully travelling as a pillion passenger aboard motor cycle registration number KMFN 493T when motor vehicle registration number KCS 494T, owned by the Appellant and driven by him or by his servant or agent, was so negligently, recklessly and carelessly driven, managed or controlled that it collided with the said motor cycle, occasioning the deceased fatal injuries from which she died. The Respondents prayed for general damages, special damages of Kshs. 89,600/=, loss of consortium, costs and interest. 2. The Appellant entered appearance and filed a defence dated 25th January 2023 in which he denied the material averments of the plaint, took issue with ownership and the identity of the driver, and, in the alternative, pleaded that any such accident as may be proved was wholly caused or substantially contributed to by the negligence of the rider of the motor cycle and of the deceased herself. A reply to defence dated 4th February 2023 was filed. 3. The suit proceeded to hearing on 12th October 2023 and 7th November 2024. The Respondents called four witnesses. The Appellant participated in the proceedings through Counsel but called no witness, and the defence case was closed. This forms the summary of the evidence as deducible from the record. 4. First to take the witness stand was PW1, Flora Akumu Simion, the deceased's mother and administratrix of her estate, adopted her statement filed on 15th December 2022 and produced exhibits PExh.1 to PExh.11. These included her national identity card, the police abstract, the sketch plan, the postmortem report, the death certificate, the letter from the Area Chief, the letters of administration *ad litem*, the birth certificates and birth notifications of the deceased's children, the motor vehicle search, the demand and statutory notices, and of central importance to this appeal, the letter of offer of appointment issued by the Vihiga County Public Service Board dated 25th February 2021 and the letter of deployment issued by the County Government of Vihiga dated 24th March 2021. 5. Further PW1 testified that the deceased was 37 years of age, was married with three children, was a trained fashion designer, and was employed by the County Government of Vihiga at Mwambeba Vocational Training Centre earning Kshs. 22,270/= per month. In cross-examination she conceded that she had not produced a pay slip. She also stated, both in her evidence in chief and under cross-examination, that the deceased died on the spot. 6. Second was PW2, PC Evanson Kibet of Luanda Police Station, produced the police abstract and sketch map and blamed the driver of motor vehicle KCS 494T, who fled the scene. PW3, Edwin Mulusa Chasiaya, and PW4, Ruth Anyoso, were eye witnesses who testified that the motor cycle rider had indicated an intention to turn right when the Appellant's vehicle, travelling at high speed and without braking, hit the motor cycle from behind. Both testified that the pillion passenger - the deceased died at the scene, while the rider was still breathing and was taken to hospital where he later succumbed. In addition, the Courts placed reliance on the documentary evidence being the certificate of birth of one Fridah Malenya, the County Government of Vihiga appointment of letter of one Rebecca Adwoli Edali dated 25th February 2021, introduction letter by the Area Chief dated 10th November 2022, certificate of death of the deceased dated 26th August 2022, Police abstract filed in Courts on 18th December 2022, and the postmortem report of the deceased dated 8th July 2022. 7. In her judgment delivered on 23rd January 2025 the Learned Trial Magistrate found the Appellant wholly liable and assessed damages as follows: 1. Pain and suffering – Kshs. 50,000/=; 2. Loss of expectation of life – Kshs. 100,000/=; 3. Loss of dependency – Kshs. 3,271,680/=; 4. Special damages – Nil; 5. Total – Kshs. 3,421,680/=, with costs and interest at Courts rates from the date of judgment. 8. On the head of loss of dependency, the learned Magistrate expressly set out her parameters and her computation. She found, from the death certificate, that the deceased was 37 years old; that she was employed by the County Government of Vihiga as a fashion design instructor earning Kshs. 22,270/= per month as per the appointment letter and letter of offer produced; that she would have worked to the retirement age of 60 years; that a multiplier of 18 years was appropriate having regard to the vagaries of life; and that a dependency ratio of 2/3 was appropriate, the deceased having been survived by a husband and three children. Her stated computation was "(2/3 x 22,270 x 18 x 12)", which she recorded as producing Kshs. 3,271,680/=. **The appeal** 1. Aggrieved, the Appellant lodged this appeal by a Memorandum of Appeal dated 20th February 2025 and filed on 22nd February 2025, raising three grounds, namely: * 1. 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; 2. That the Learned Trial Magistrate erred in law and in fact in awarding loss of dependency of Kshs. 3,271,680/= yet there was no proof of income of the deceased; 3. 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 on the amount of quantum appropriate and applicable in similar cases. 2. The Appellant prays that the appeal be allowed, the decree in Vihiga PMCC No. E298 of 2022 be set aside, that this Courts re-assesses the evidence on record on quantum and substitutes its own award, and that he be awarded the costs of the appeal. 3. By consent, the appeal was canvassed by way of written submissions. The Appellant's submissions are dated 3rd May 2026 and were filed by M/S KRK Advocates LLP. The Respondents' submissions are dated 7th August 2026 and were filed by M/S M. A. Okumu & Co. Advocates. I have read both sets of submissions and the authorities annexed to them. **Submissions of the Appellant** 1. In this regard Learned Counsel for the Appellant submits, first, that the learned magistrate applied a multiplicand of Kshs. 22,270/= that was never proved. It is contended that although a letter of employment was produced indicating the salary the deceased would earn as a fashion designer, such a letter could only assist the Courts in grading the deceased as a skilled or unskilled worker; that the only acceptable proof of earnings would be bank statements, pay slips or M-Pesa statements; and that in their absence the Courts ought to have reverted to the Regulation of Wages Order. 2. He placed reliance in the following authorities; *Rutto v Kiprono & Another (Suing as the Administrators of the Estate of Daniel Chemweno Kosgei) [2024] KEHC 15073 (KLR)*, in which Wananda J. considered the multiplicand and cited *Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748* for the proposition that it is the net earning power of the deceased, being income less tax, that determines the annual value of the dependency. It is submitted that the failure to produce a pay slip meant that net income could not be ascertained and that the multiplier method could therefore not properly be applied. 3. The Appellant learned Counsel further relied on the principles in the case of *Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR*, where Wendoh J. observed that where a plaintiff does not prove what the deceased earned the Courts would ordinarily base the earnings on the minimum wage, and on *Frankline Kimathi Maariu & Another v Philip Akungu Mitu Mborothi [2020] eKLR*, where Mabeya J. held that where there is no salary or employment proved, the Courts should be wary of subscribing to a figure and should instead apply the global sum approach or the minimum wage. 4. Whereas on pain and suffering, Learned Counsel submitted that awards under this head depend on whether there was prolonged distress or torture before death. It is asserted that the deceased died while undergoing treatment and was neither admitted nor referred to any other hospital, and that she therefore endured no torture. Relying on *Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR*, where the awards for pain and suffering were said to range from Kshs. 10,000/= to Kshs. 100,000/=, with higher awards where the suffering was prolonged, the Appellant urges that Kshs. 10,000/= would be reasonably fair. **Summary of the Respondents Submissions** 1. Learned Counsel for the Respondents first addresses the threshold for appellate interference with quantum, relying on *Butt v Khan [1981] KLR 349*, *Omar v Ngowa & another [2024] KEHC 8750 (KLR)* (citing *Henry Hilanga v Manyoka [1961] EA 705*), and *Gitobu Imanyara & 2 others v Attorney General [2016] eKLR*, for the settled proposition that an appellate Court will not substitute a figure of its own merely because it would have awarded differently at first instance. 2. With regard to the multiplicand, Learned Counsel submitted that a letter of appointment is a document issued by an employer confirming employment and setting out its terms, including salary, and is therefore proof not only of employment but of earnings. It is emphasized that the letter relied upon was issued by a public body, the Vihiga County Public Service Board, was signed by both employer and employee, and was produced in evidence without objection and was never controverted at the hearing. 3. In addition, Learned Counsel reminded the Courts that the standard of proof in civil matters is a balance of probabilities, citing *Palace Investment Ltd v Geoffrey Kariuki Mwenda & another [2015] eKLR* and the classic statement of Denning J. in *Miller v Minister of Pensions [1947] 2 All ER 372*, and submits that the letter of appointment discharged that burden. 4. In the alternative, and if the Courts were minded to apply the minimum wage for the deceased's trade, the Respondents submit that the applicable figure for a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 — which covers the tailoring trade — is Kshs. 23,716/=, which is higher than the figure adopted by the trial Court. On that footing the Respondents invite an enhancement of the award to Kshs. 3,415,104/= (2/3 x 23,716 x 18 x 12). 5. In respect of pain and suffering, the Respondents submit that the deceased died instantly, that Kshs. 50,000/= was proposed and awarded, and that the award is consistent with *Premier Dairy Limited v Amarjit Singh Sagoo & Another [2013] eKLR*, where Kshs. 75,000/= was upheld for a deceased who died instantly, and *Sukari Industries Limited v Clyde Machimbo Juma [2015] eKLR*, where Kshs. 50,000/= was upheld in like circumstances. They add that the award of Kshs. 100,000/= for loss of expectation of life is the conventional figure. They pray that the appeal be dismissed with costs. **The Duty and Jurisdiction of this Court** 1. This being a first appeal, my duty under Section 78 of the Civil Procedure Act, Cap. 21 is to re-appraise, re-evaluate and re-analyze the whole of the evidence tendered before the trial Courts and to arrive at my own independent conclusions, bearing always in mind that I neither saw nor heard the witnesses testify and making due allowance for that disadvantage. See *Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123* and *Peters v Sunday Post Limited [1958] EA 424*. 2. That duty is, however, qualified in an appeal directed solely at quantum. The assessment of damages is a matter of discretion for the trial Court, and the circumstances in which an appellate Court may interfere are narrow and well settled. 3. In *Butt v Khan [1982–88] 1 KAR 1*, the Courts of Appeal held that 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 misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. 4. The same principle was restated in *Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A. M. Lubia and Olive Lubia [1985] eKLR*, where the Courts identified the grounds of interference as the taking into account of an irrelevant factor, the leaving out of account of a relevant one, or an amount so inordinately high or low as to be a wholly erroneous estimate of the damage. 5. It follows that it is not enough for an Appellant to persuade me that, sitting at first instance, I might have arrived at a different figure. The Appellant must demonstrate an error of principle, a material misapprehension of the evidence, or a figure that is wholly erroneous. The burden of doing so lies squarely on the Appellant. **Issues for determination** 1. Having considered the Memorandum of Appeal, the record, the rival submissions and the authorities, I frame the issues for determination as follows: * 1. Whether the learned trial Magistrate erred in adopting the multiplier method and a multiplicand of Kshs. 22,270/= in the absence of a pay slip or bank statements; 2. Whether the multiplier of 18 years and the dependency ratio of 2/3 were properly adopted; 3. Whether the resulting award of Kshs. 3,271,680/= for loss of dependency is sustainable; 4. Whether the award of Kshs. 50,000/= for pain and suffering is inordinately high; 5. Whether the learned trial Magistrate failed to have regard to the authorities cited in the defendant's submissions; 6. Whether this Courts may entertain the Respondents' invitation to enhance the award; and 7. What orders should issue, and who should bear the costs. **Analysis and determination** ***Issue (i): Proof of income, and the propriety of the multiplicand of Kshs. 22,270/=*** 1. On this first issue the Fatal Accident Act provides the statutory provisions upon which the exercise of discretion shall be exercised to arrive at a just and proportionate compensation in favour of the deceased estate. This being a common law jurisdiction with its foundation in the English Law one would not be out of order in starting this analysis by making reference to the principles illustrated in the case of *Nance v British Columbia Electric Railways Co. Ltd 1951* in which Viscount Simon set out in the judgment as follows on the principles for estimating the damages in the circumstances of this appeal. Thus: *"........at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of pre-mature determination of his life by later accidents, secondly, the amount required for the future provision of his wife shall he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived he full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation."* 1. The other aspect of this appeal which is on account of loss of life caused by the Road Traffic Accident revolves around the starting point which is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. 2. These core principles in the persuasive case law have actually been domesticated in our very own jurisdiction as demonstrated herein under: * *The Multiplicand (Annual Dependency): Represents the net annual financial value of the dependency. The Court of Appeal mandates that the multiplicand must be computed using the net earnings (gross earnings minus statutory deductions like PAYE, NSSF, and NHIF), rather than the raw gross salary* * *The Multiplier (Years of Purchase): Represents the number of years the dependency would have lasted. In determining a reasonable multiplier, the Court considers the deceased's age, remaining productive working life span, the normal retirement age in Kenya, the life expectancy of the dependents, and the vicissitudes/vagaries of life.* * *Dependency Ratio: Usually assessed as a fraction (e.g., 2/3 or 1/2 or 1/3) reflecting the proportion of the net income the deceased actually used to maintain the dependents during their lifetime.* 1. Insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. If the same is followed, it shall subserve the cause of justice and the unnecessary contest before the Courts would be avoided. 2. In the Kenyan context on matters to do with award of damages for lost years under the Fatal Accident Act where there are dependants who have been deprived of their survivorship and maintenance due to the death of the main provider as the deceased to this appeal several other factors should be taken into consideration which may include the age and education of the dependants and all the nature of the job of the deceased as at the time of his/her death. It is also true to state that in the wake of change of societal conditions and global scenario feature prospect may have to be taken into account not only the Court having regard to the status of the employee now deceased, his/her education qualification, his/her past performance but also other relevant factors. This may include the nature of the salaries and allowances which were being offered by the employer prior to his/her death in which she/he suffered the fatal injuries arising out of the motor vehicle accident. 3. The Appellant's central complaint is that there was "no proof of income". With respect, that submission does not survive an examination of the record. The deceased was not a person of unknown or informal occupation. She was a public officer. On 25th February 2021 the Vihiga County Public Service Board issued her with a letter of offer of appointment as Instructor, Fashion Design and Garment Making, in the Department of Technical Education and Vocational Training. On 24th March 2021 the Chief Officer, Technical and Vocational Education and Training, County Government of Vihiga, issued her with a letter of deployment to Mwambeba Vocational Training Centre. Both documents were produced in evidence as PExh.7 and PExh. 8. 4. There is Clause 2 of the letter of offer, under the heading "Remuneration", provides that the deceased's monthly remuneration package shall be within the bracket of Job Group CPSB11 – "G", set out as a salary scale running from Kshs. 22,270 by annual increments up to Kshs. 30,020 per month, and states in terms that her entry point shall be Kshs. 22,270.00 per month. The same clause provides that all other allowances and benefits accruing to the position are as per the guidelines issued by the Salaries and Remuneration Commission. The letter bears the deceased's signature accepting its terms. 5. That is documentary evidence of employment and of earnings, emanating from a public employer, contemporaneous, specific as to figure, and accepted in writing by the employee. It was produced without objection. Its authenticity and sufficiency were not challenged in cross-examination. No contrary evidence was tendered, the Appellant having elected to call no witness at all. 6. The proposition that earnings may be proved only by a pay slip, a bank statement or an M-Pesa statement is not the law. In *Jacob Ayiga Maruja & Another v Simeone Obayo [2005] eKLR*, the Courts of Appeal declined to accept that the only method of proving a person's occupation and earnings is by production of documents, holding that oral evidence, if credible, may suffice. Documentary proof is the best evidence where it exists; it is not the only admissible evidence. Here the Respondents in fact produced documentary proof, but the Appellant produced nothing. 7. The authorities relied upon by the Appellant are, on analysis, authorities against him. In *Frankline Kimathi Maariu* (Supra), Mabeya J. was dealing with a case in which the deceased's father - himself a director of the alleged employer company - gave contradictory figures of Kshs. 20,000/= and Kshs. 15,000/=, produced no letter of appointment, and withheld records to which he had ready access; a company letter described the deceased merely as a casual and disclosed no salary. It was in that setting that the learned Judge said the Courts should be wary of subscribing to a figure "where there is no salary proved or employment". Here, both employment and salary were proved, and by an independent public employer. 8. In *Beatrice W. Murage* (supra), the pleaded case was that the deceased was an enterprising businessman and contractor earning in excess of Kshs. 95,000/= per month, while the widow's evidence was that he was a wheat farmer; there was, as Wendoh J. found, "no shred of evidence" to support either account, and the deceased was in any event 74 years old and beyond employment age. The passage on the minimum wage relied upon by the Appellant is expressly predicated on a failure to prove earnings at all. That is not this case. 9. In *Rutto v Kiprono* (supra), the only document produced was a pay slip for June 2013 - six years before the death - and the deceased had passed the retirement age. Even on those facts, Wananda J. declined to fault the trial Magistrate for adopting the multiplier method, precisely because the documents had gone in without objection and were not controverted. The reasoning applies with greater force here, where the documents are current to the employment subsisting at the date of death. 10. That leaves the more refined point taken by the Appellant through *Rutto* and *Chunibhai J. Patel*: that the multiplicand must be the net, and not the gross, earnings. The governing authority is *Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Limited [2015] eKLR*, in which the Courts of Appeal held that the net income determines the multiplicand and that it is net of statutory deductions only — loan repayments, savings, union dues and similar voluntary deductions are not to be taken into account. 11. Two matters answer that submission on the facts of this case. First, the figure of Kshs. 22,270/= is not a gross salary in the sense contemplated in Hellen Waruguru. It is the basic entry point of the salary scale. It excludes the allowances and benefits which clause 2 of the letter of offer expressly provided for, and it excludes the annual increments built into the scale, under which the deceased's basic pay would have risen progressively to Kshs. 30,020/=. The deceased had by the date of the accident already served some sixteen months. The multiplicand adopted was therefore a floor rather than a ceiling. Secondly, and decisively, there is no evidence whatsoever on the record from which the statutory deductions applicable to the deceased could be quantified. No pay slip was produced. It is not the function of an appellate Court to speculate about the incidence of PAYE, the National Social Security Fund or the health insurance levy in order to construct a deduction for which no party laid an evidential foundation. The Appellant, as the party seeking to disturb the award, bore the burden of demonstrating the error he alleges and of showing this Court what the correct figure ought to have been. He filed no evidence below and has offered no computation on appeal. 12. In any event, whatever modest statutory deductions might have applied to a basic salary at this level would, on any realistic view, have been more than offset by the allowances and increments which the multiplicand leaves out of account on the net effect of the trial Court's approach in arriving at the final award. 13. There is a further and complete answer. The Appellant's own preferred methodology yields him no benefit. Having abandoned in this Court the figure of Kshs. 8,109.90/= (the general labourer's minimum wage) urged below, he now invites a reversion to the Regulation of Wages Order without identifying the applicable rate. The Respondents submit, and the Appellant has not disputed, that the minimum wage applicable to the tailoring and garment trade in a former municipality under item 8 of the Regulation of Wages (General) (Amendment) Order, 2022 is Kshs. 23,716/=. Vihiga is a former municipality. On the Appellant's own methodology the multiplicand would therefore be higher, not lower, than the figure the trial Court adopted. A ground of appeal which, if accepted, would increase the award cannot avail the Appellant. 14. I therefore find that there was satisfactory proof of the deceased's monthly income; that the learned trial Magistrate was entitled to adopt the multiplier method rather than a global sum; and that the multiplicand of Kshs. 22,270/= discloses no error of principle. Ground 2 of the Memorandum of Appeal fails. ***Issue (ii): The multiplier and the dependency ratio*** 1. My findings therefore is neither the multiplier nor the dependency ratio is expressly challenged in the Memorandum of Appeal, and neither was it addressed in the Appellant's submissions. The ultimate resolution is that ground 1 however as framed broadly enough to embrace the assessment as a whole, and as a first appellate Courts I have in any event re-examined both and no reasons have been advanced to have it reviewed in favour of the Appellant. 2. It is a fact that the deceased was 37 years of age at her death, as established by the death certificate. She was a Public Officer whose employment would ordinarily have run to the retirement age of 60 years, leaving 23 potential working years. The Learned Magistrate adopted 18 years, expressly discounting for the vagaries, uncertainties and vicissitudes of life. In legal jurisprudence, the term "vagaries of life" (often paired with "vicissitudes of life") refers to the unpredictable, uncontrollable uncertainties, risks, and changes inherent to human existence—such as sudden illness, premature death, loss of employment, economic hardship, or career shifts. When Courts evaluate how these vagaries affect a human being's right to life, they primarily do so across two main legal dimensions: Tort/Personal Injury Law (quantifying the value or expectation of a life cut short) and Constitutional Law (ensuring a life of dignity, livelihood, and protection from life's cruelest uncertainties). In fatal accident claims and personal injury lawsuits, Courts must determine the financial value of a life or the loss of dependency. Judges routinely cite the "vagaries of life" to reduce or adjust the life expectancy multiplier, acknowledging that no person is guaranteed to live or work until a specific retirement age without facing unforeseen hardships. 3. In the case before Court, there was not iota of evidence that the right to life of the deceased during her livelihood she had experienced certain preexisting conditions which when placed on the vagaries of life into considerations there was a higher likelihood of her not making to the retirement age of 60 years. This victim of this accident was actually at her prime young adult age of 37 years with no known health conditions which could have impacted her right to life. The right to life stands at the top of the human right and freedoms pyramid in our Constitution 2010. Placed in this way, the Republic of Kenya has endeavored to provide accessible universal health care for all of its citizens. In essence Article 43(1)(a) provides as follows: *(1) Every person has the right—* *(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;* 1. Fundamental principles of the protection of human life are determined in our constitutional provisions. Life is a right, a fundamental attribute of the human being and when it is removed, or taken from one state at the same time the human being is eliminated, as bearers of rights and obligations. Human life is an indisputable value and is subject to constitutional protection. But this does not mean that the protection of human life, at every moment and in all circumstances must be the same, as it is influenced by a number of factors of different natures, which is the lawmaker the person that foresee these factors by law. Legislator is only authorized to make exceptions by law, when as a result of the protection of an important constitutional right, is required to terminate a person's life. 2. This question on elements of vagaries and vicissitudes of life should not take a higher influencer in shaping assessment of damages to override Kenya’s life expectancy at birth which stands at approximately at 63.8 to 66.8 years, marking a massive turnaround from the year 2000 when life expectancy was approximated at 64 years due to HIV/AIDS epidemic. There should be evidence of vagaries and vicissitudes of life in support of the fact that there is a high probability that a victim of the accident whose estate is litigating under the Fatal Accident Act could not leave the fullness of life as already predestined by the law of creation and as measured and influenced by other interconnected demographic, socioeconomic and health care indicators. It is now a generally acceptable indicator that women in Kenya consistently outlive men. In the recent data it shows that female life expectancy is at 66.1-66.5 years compared to the men life expectancy of 61.6-62.0 years. 3. It is true that the Learned Trial Magistrate relied on that subjective factors in applying the multiplier and the multiplicand in determining that life expectancy of the deceased to a digit formula of 18 years to be applied together with the 2/3 factorial to arrive at the quantum in favour of the estate of the deceased. In my view, I understand this to be a judicial compliment of decision making which in the first instant is a preserve to the Trial Court and can only be interfered with as reiterated above elsewhere in this judgment. Given the discussion and the typology stated elsewhere in this judgment the following principles as an affirmation of the law persuade me to review the judgment under this limb: * *Misdirection in law: The Magistrate applied the wrong legal principles or misinterpreted a binding statute.* * *Misapprehension of facts: The trial Court based its exercise of discretion on clearly mistaken or non-existent factual findings.* * *Taking into account irrelevant considerations: The Magistrate factored in elements that should have been ignored under the law.* * *Failing to take into account relevant considerations: The Magistrate omitted vital aspects or evidence essential to a fair choice.* * *Plainly wrong/Arbitrary decision: The ultimate decision is so unreasonable or capricious that no reasonable tribunal properly directing itself could have reached it.* 1. In considering the factual matrix of this case and probative evidence availed at the Trial Court the above parameters mirror the misapprehension of what indeed constitutes vagaries and vicissitudes of life and their percentage ratio and standing on impacting of enjoyment on right to life under Article 26 of the Constitution with the other key parameters stated elsewhere by this Court on life expectancy in Kenya. The life expectancy indicators in Kenya is empirically formulated whereas vagaries and vicissitudes of life has nothing to show that a particular class of persons either female or male have a higher possibility of not making to the retirement age of 60 years. This is important in the decision making of a Trial Court when called upon to protect and guarantee civil rights of our citizens. 2. In all aspects of adjudication of disputes and decision making they are all controlled by aspects of judicial discretion. I consider judicial discretion as one of the most important elements of judicial power as vested by the Constitution and Statute Law upon Judges and Magistrates in a legal system and without it Judges and Magistrates would be reduced to automatons or robots. The nature of the judicial process is akin to that of the legislature hence the maxim judge made law. This is clearly illuminated by the Learned Author Cardozo’s in a lecture delivered in 1991 with the following highlights when comparing the task of the Judge with that of the legislature: *The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law .... None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.* 1. It is my jurisprudential view that Trial Courts should not take the position of being prophetic by invoking the canons of vagaries and vicissitudes which is more subjective than objective in assessing damages under the Fatal Accident Act. My conclusion is the denominator of 18 years formulated by the Trial Court is wrong exercise of discretion resulting in a denial of civil rights capable of being vindicated in favour of the estate of the deceased. There is opaqueness in the application of the legal norms of vagaries and vicissitudes of life and if they have to be invoked as legally binding principles then they must be brought within the open texture of probative evidence. With this background I take the paradigm of discretion in the stronger sense that the reduction of the retirement age by invoking the vagaries and vicissitudes of life fails the test of other indicators properly researched under the rubric of life expectancy in Kenya based on empirical data both men and women enjoying long lifespan above the digit of above 62 years and more surprisingly the women are in the 66 years age bracket. I see no reason to suggest that the deceased could have died at the age of 56 and was not capable of making to retirement and beyond. For purposes of this case the 18 years formula be and is hereby reviewed and set aside and the same be substituted with 23 years. This means the assessment of damages will flow from this metrics: Kshs. 22,270 x 12 months = Kshs. 267,240 per annum; x 23 years = Kshs. 6,146,520; x 2/3 = Kshs. 4,097,680*.* 1. As to the dependency ratio, the deceased left a husband and three children, whose birth certificates and birth notifications, together with the Area Chief's letter, were produced. A ratio of 2/3 is the conventional ratio for a married person with children and is well supported by authority. It cannot be faulted. ***Issue (iii): The arithmetic of the award for loss of dependency*** 1. Although the parameters adopted by the trial Court are sound, this Court has faulted the multiplicand of 18 years as being wrong in principle substituting it with a factorial of 23 years. As such the formula in the reviewed judgment would be: (2/3 x 22,270 x 23 x 12). Worked through, that formula produces the following: *Kshs. 22,270 x 12 months = Kshs. 267,240 per annum; x 23 years = Kshs. 6,146,520 x 2/3 = Kshs. 4,097,680.* 1. The correct product of the trial Court's own parameters is therefore Kshs. 4,097,680/=, and not Kshs. 3,271,680/= as recorded in the judgment and carried into the decree. The figure of Kshs. 4,097,680/= corresponds to a multiplicand of Kshs. 22,270/=, which is a transposition of the figure of Kshs. 22,270/= that appears in the letter of offer and that the learned Magistrate herself twice recited in her judgment. 2. The award for loss of dependency will accordingly be set aside and substituted with an award of Kshs. 4,097,680/= ***Issue (iv): Pain and suffering*** 1. The Appellant's submissions on this head proceed on a factual premise which the record does not support. At paragraphs 16 and 18 of his submissions, Counsel asserts that the deceased died while undergoing treatment. That is not what the evidence establishes. 2. PW1 stated in cross-examination that the deceased died on the spot. PW3, an eye witness, testified that the pillion passenger died on the spot while the rider was still breathing. PW4 gave evidence to like effect. PW2, the Investigating Officer, testified that on arrival at the scene he found the body of a lady on the road and that it was the rider who was rushed to Kima Mission Hospital where he succumbed. The learned trial Magistrate made an express finding that the deceased died instantly. It is the rider of the motor cycle, and not the deceased, who died while undergoing treatment. Counsel has, with respect, conflated the two. 3. Curiously, the Appellant's factual error works against him. Had the deceased in truth lingered under treatment, the award would have been supportable at a higher, not a lower, figure. 4. Taking the position as it truly is, that death was instantaneous, the question is whether Kshs. 50,000/= is inordinately high. The authorities cited by both sides place the range for pain and suffering at between Kshs. 10,000/= and Kshs. 100,000/=, with higher awards where the suffering was prolonged before death. Where death is instantaneous, nominal damages are the norm, but they are not nil: it is natural that a person fatally injured suffers some pain, however brief and fleeting, for which the estate is entitled to compensation. 5. The Appellant's own authority, *Hyder Nthenya Musili*, places Kshs. 50,000/= squarely within the range. In *Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR*, Majanja J. upheld an award of Kshs. 50,000/= where the deceased died immediately. In *Premier Dairy Limited v Amarjit Singh Sagoo & another [2013] eKLR*, Kshs. 75,000/= was upheld for a deceased who died instantly at the scene. In *Omar v Ngowa & another [2024] KEHC 8750 (KLR)*, Magare J. declined to interfere with an award of Kshs. 80,000/= where the deceased died instantly. In *Rutto v Kiprono* (supra), Wananda J. found the majority of awards in instantaneous-death cases to fall between Kshs. 20,000/= and Kshs. 50,000/= and declined to disturb an award of Kshs. 50,000/=. An award of Kshs. 50,000/= made in 2025 sits at the middle of that range, and is if anything modest when regard is had to the erosion in the value of money since many of those awards were made. It is neither inordinately high nor a wholly erroneous estimate. There is no basis for interference, and I decline to reduce it. Ground 1, so far as it relates to pain and suffering, fails. For completeness, the award of Kshs. 100,000/= for loss of expectation of life is the conventional figure and is not the subject of any ground of appeal. It stands undisturbed. ***Issue (v): Alleged failure to consider the defendant's authorities*** 1. The third ground alleges that the learned Magistrate failed to pay regard to the authorities cited in the defendant's submissions. The record does not bear this out. The learned Magistrate stated in terms that she had considered the written submissions furnished by Counsel for both the plaintiff and the defendant together with all the case law relied upon. She then proceeded to reason by reference to authority on each contested head, citing *Mercy Muriuki & Another v Samuel Mwangi Nduati & Another [2019] eKLR and Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR on pain and suffering, Benedeta Wanjiku Kimani v Changwon Cheboi & Another [2018] eKLR on loss of expectation of life, and Martha Ndiro Odero v Come-Cons Africa Limited [2015] eKLR* on loss of dependency. 2. A trial Court is not obliged to recite and distinguish every authority pressed upon it. What is required is that it identify the applicable principle, apply it to the evidence, and give reasons. That was done. A judgment is not impeachable merely because the authorities that persuaded the Court happened to be those cited by the other side. Ground 3 fails. ***Issue (vi): The Respondents' invitation to enhance the award*** 1. At paragraphs 14 and 15 of their submissions, the Respondents invite this Court to enhance the award for loss of dependency to Kshs. 3,415,104/= by substituting a multiplicand of Kshs. 23,716/=. That invitation must be declined, and on a short ground. 2. The Respondents have filed no cross-appeal. This Court has therefore not been moved to determine any question of enhancement, and the Appellant has had no opportunity to respond to such a claim. The only appeal before me is one seeking a reduction. The point was put with clarity by Wananda J. in *Rutto v Kiprono* (supra), where the learned Judge declined a like invitation for precisely these reasons and by Magare J. in *Omar v Ngowa* (supra), who found no basis to analyze the Respondent's projections in the absence of a cross-appeal. I respectfully adopt that reasoning. 3. The Respondents' minimum-wage argument nonetheless retains its force in the way I have already described: it demonstrates that the Appellant's alternative methodology would not improve his position. It cannot, however, be used as a vehicle for increasing an award that was not appealed against by the party who benefits from it. ***A note on duplication of awards*** 1. Neither party raised the question of duplication between the claims under the Law Reform Act and the Fatal Accidents Act, but I record briefly that no issue arises. As the Court of Appeal explained in *Hellen Waruguru Waweru* (supra), duplication occurs where the beneficiaries under both statutes are the same and the claim for the lost years and the claim for dependency would go to the same person(s). No award was made here for the lost years. Damages for pain and suffering and for loss of expectation of life are awarded only under the Law Reform Act, and their award alongside a dependency claim does not give rise to duplication. No deduction therefore falls to be made. **Disposition** 1. The appeal by the Appellant fails on all grounds save for the review of the first limb on loss of dependency in which the Court was faulted in the application of both the multiplicand and multiplier and on that point of facts and law the quantum was enhanced to Kshs 4,097,680/=. The other limbs on assessment of damages remains undisturbed by this Court. This appeal costs shall follow the event and shall remain payable by the Defendant/Appellant to this appeal which shall be accessed by the Taxing Master. **DELIVERED, DATED AND SIGNED AT VIHIGA THIS 9TH DAY OF SEPTEMBER 2026.** **………………………………………** **R. NYAKUNDI** **JUDGE**