https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8018

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO. E028 OF 2025** **PHILIP KINYANJUI KURIA………………………………………….........1ST APPELLANT** **STEPHEN MUNGAI KAMAU……………………………………………...2ND APPELLANT** **VERSUS** **CHRISTOPHER KIPROTICH (suing as the Legal Representative** **of the estate of HILLARY KIPRONO-DECEASED……….............................RESPONDENT** **JUDGMENT** ***(Appeal from the Judgment dated 26/11/2024 delivered in Eldoret Chief Magistrates Court Civil Case No. E731 of 2022 by Hon. Richard O. Odenyo - SPM)*** 1. This Appeal arises from the Judgment delivered in the said Magistrate’s Court suit in which the Respondent (as the Plaintiff) instituted a claim on behalf of the estate of his deceased 32 years old son, against the Appellants for compensation for the death of the deceased, which occurred as a result of a fatal road accident. Judgment was entered in favour of the Respondent and the Appeal is stated to be against the trial Court’s decision on quantum. 2. The trial Court apportioned liability equally between the parties, and awarded the Respondent damages (plus costs and interest). The breakdown of the Judgment was therefore in the following terms: | | | | | --- | --- | --- | | | Liability at 50:50 | | | | Pain and suffering | Kshs 20,000/- | | | Loss of expectation of life | Kshs 100,000/- | | | Loss of dependency | Kshs 2,500,000/- | | | Special damages | Kshs 95,000/- | | | **Sub-total** | **Kshs 2,715,000/-** | | | Less 50% contribution | Kshs 1,357,500/- | | | **Total** | **Kshs 1,357,500/-** | | | Plus costs and interest | | 1. The background of the matter was the Plaint dated 6/07/2022 filed through **Messrs Morgan Omusundi Law Firm Advocates**, in which the Respondent pleaded that on 20/07/2022, the deceased was a pedestrian along the Eldoret-Nakuru Road when the Appellants’ driver negligently or carelessly managed the Appellants’ motor vehicle registration number KBP 176X causing it to knock down the deceased, who, as a result, suffered fatal injuries. It was pleaded further that the deceased left behind a father (the Plaintiff), wife and 2 daughters, and that, at the time of his death, he enjoyed good health, and was a successful businessman earning an average monthly income of Kshs 20,000/- The Plaintiff therefore sought general damages and also special damages in terms of incurred funeral expenses, hospital and mortuary charges, legal fees, and motor vehicle search fees. 2. In the joint Statement of Defence dated 29/09/2022, filed through **Messrs Onyinkwa & Co. Advocates**, the Appellants generally denied the allegations made in the Plaint, and in the alternative, blamed the deceased for the accident. 3. The matter then proceeded for trial in which the Respondent (as Plaintiff) called 3 witnesses, while the Appellants called 1. At the end of the hearing, the trial Court rendered its Judgment as aforesaid. Dissatisfied with the decision, the Appellants filed this appeal by way of the Memorandum dated 14/02/2025, premised on the following 3 grounds: 4. **The Learned trial Magistrate erred in law and in fact by adopting the wrong principles in assessing damages under loss of dependency, hence awarding damages that were inordinately high in the circumstances, and which had no legal basis.** 1. **The Learned trial Magistrate erred in law and fact in using the wrong approach in determining the damages under the Fatal Accidents Act and ended up making a global award of Kshs 2,500,000/- under the loss of dependency, which award was manifestly excessive in the circumstances.** 2. **That the learned trial Magistrate erred in law and in fact in failing to consider the Appellant’s submissions as a guide thereby arriving at an erroneous decision.** 3. As aforesaid, it is clear that the Appeal is only in respect to quantum, and specifically on assessment of “***loss of dependency***”. I will now recount the witness testimonies but only as relates to that specific issue of quantum under dispute. 4. **PW1** was a police officer from the Tarakwa Police Station where the accident was reported. His evidence was therefore limited to the issue of liability. He produced the Police Abstract 5. **PW2** was the 1st Respondent (Plaintiff). He produced, among others, copies of the Post-Mortem Report relating to the deceased, burial permit, Certificate of Death, Letters of Administration Ad Litem, Letter of introduction from the Chief, and various payment receipts. In cross-examination, he restated that the deceased was 32 years old at the time of his death, and a businessman. He however conceded that he could not prove the amount of Kshs 20,000/- he had alleged in the Plaint as the monthly income earned by the deceased, and also that he did not produce any Certificate of Marriage to demonstrate that the deceased was married but contended that this was because the marriage was a traditional one. He conceded further that he did not produce any Certificates of Birth to demonstrate that the deceased left behind any children, and also that he did not produce any receipts to demonstrate that the deceased was paying school fees. He also revealed that the wife of the deceased was a petty trader and was also earning some income which she used to also meet the needs of the children. He stated that he, too, also used to assist the family of the deceased as the deceased had no definite income. 6. **PW3** was an alleged eye-witness whose testimony was therefore also limited to liability. 7. The defence testimony was then given by the 1st Appellant, **Philip Kinyanjui Kuria**, who testified as **DW1**. His testimony, too, was limited to liability. 8. I then gave the parties leave to file written Submissions. Pursuant hereto, the Appellants filed the Submissions dated 1/11/2025. I have not however come across any Submissions filed by the Respondent. **Appellant’s Submissions** 1. Counselfor the Appellant faulted the trial Magistrate for adopting the “***global award***” approach in assessing “***loss of dependency***”, instead of the “***multiplier***” method, which, he submitted, was the appropriate in this case. He submitted that the deceased having died on 20/07/2022, the applicable guide should have been the **Regulation of Wages (General Amendment) Order, 2022**. He contended that since the Respondent did not specify the kind of business the deceased was engaged in, he can be classified as a “***general labourer***”, and that since the Certificate of Death indicates that the deceased resided at Seiyo, he fell under the “other areas” column appearing in the Regulations, in respect to which the minimum wage stipulated is Kshs 8,109.90. He proposed a multiplier of 20-22 years considering that the deceased died at the age of 32 years. On the issue of “***dependency ratio***”, Counsel submitted that the Chief’s letter relied upon by the Respondent to demonstrate that he had a wife and children was not sufficient proof of dependency which is a question of fact. He also pointed out that the Respondent, in his testimony, stated that the wife of the deceased was a businesswoman and used to take care of the children, and that he, Respondent, also used to assist them as the deceased had no definite income. According to him therefore, the deceased was not the sole breadwinner of his family. He therefore proposed a “***dependency ratio***” of 1/3. His final total Judgment amount proposal was therefore for a sum of Kshs 713,671/- computed as **Kshs 8,109.90 x** **12 months x 22 years x 2/3**, based on the following parameters: | | | | | --- | --- | --- | | Multiplicand (monthly earning) | Earning years (multiplier) | Dependency ratio | | 8,109.90 | 22 | 2/3 | **Determination** 1. As reiterated in a plethora of cases, this being a first appellate Court, it has the duty to evaluate, re-assess and re-analyze the evidence before the trial Court, and draw its own conclusion (see for instance, the case of **Kenya Ports Authority vs Kuston (Kenya) Ltd** **[2009] 2 EA 212**. 2. The issue for determination in this Appeal is evidently **“whether the trial Court’s award under the head of “loss of dependency” was based on a wrongful approach”**. 3. In respect to the principles applicable when an appellate Court is called upon to interfere with a trial Court’s assessment of damages, the Court of Appeal of Eastern African (**Law J.A**.), in the case of **Butt v. Khan Civil Appeal No. 40 of 1997**, 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 that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”**See also **Kemfro Africa Ltd and Another vs A.M. Lubia & Another (1982-1988)** 1. The above principle was reiterated by **Kneller J.A.** inthe case of **Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v AM. Lubia and Olive Lubia {1982-88} 1 KAR 727**, and again, by the Court of Appeal, in the subsequent case of **Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR**. 2. From the foregoing, it is clear that this Court can only interfere with assessment of damages by the trial Court in instances where it is satisfied that the trial Court took into account an irrelevant factor, or left out a relevant factor, or the award was either inordinately high or low as to amount to an erroneous estimate of the damage, or that the assessment was not based on evidence. 3. On “***loss of dependency***”, regarding the choice of the method to adopt in computing it, **Mabeya J** in the case of **Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR**, stated as follows: **“[23] In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.** **[24] The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”** 1. Similarly, **Nambuye J** (**as she then was**), in the case of **Mary Khayesi Awalo & Another v Mwilu Mulungi & Another****[1999]eKLR** cited in**Albert Odawa v Gichimu Gichenji****[2007] eKLR,**had, even earlier, stated that: **“The multiplier approach is just a method of assessing damages. It is not a principle of law or a 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 the 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.”** 1. The Judge further stated as follows: “**As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the court’s opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books**”. 1. It is however also generally agreed that the choice between using either the “***multiplier*” formula** or the “***global (lump sum*)” method** when assessing “***loss of dependency***” is entirely at the **discretion of the trial Court** as there is no one fixed or definitive method that must be applied. The trial Court cannot therefore be faulted if it satisfactorily explains the reasons for its choice of one formula over the other as it has the discretion to choose either way. 2. For instance, **Njagi J**, in **Kakamega H.C.C.A. 10/2017** **Chitabhadhiya Enterpreises & Another Vs. Gladys Butali** stated as follows: **“..............A review of past High Court Judgments in Kenya indicated that there is no uniform method of assessing damages for estates of minors for loss of dependency. Some High Court Judges hold the view that both approaches are proper”** 1. **Prof. Joel Ngugi, J (as he then was)** in **Kenya Power & Lighting Company Limited Vs E.K.O & Another, Kiambu HCCA No. 169 of 2016 (2018) eKLR**, also held that: **“... It thus emerges that superior court are split on whether it is appropriate to use the multiplier method when assessing loss of dependency for a minor child. It was in my view therefore upon the discretion of the learned trial magistrate to use the multiplier method in this case. This court cannot review that decision merely because it would have used the global assessment method advocated by other High Court decisions. The learned trial magistrate did not proceed on wrong principles for merely choosing to use the multiplier method and then choosing the minimum wage as the multiplicand ...............”** 1. An appellate Court will not therefore generally interfere with a trial Court’s choice of formula of assessment of “***loss of dependency***” between the two methods unless it is demonstrated that it acted on wrong legal principles, misapprehended the evidence, or arrived at an award that is demonstrably too high or too low. 2. In practice however, the **“*multiplier*”** method is preferred in cases where measurable criteria are ascertainable without entering the realm of complete speculation. Under this method, the Court multiplies a “***multiplicand*”**, which is the annual financial dependency fraction, in practice 2/3, for a married individual, by a “***multiplier*”** which is an estimate of the anticipated working life remaining, factoring in the retirement age and the vicissitudes of life. The **“*global method*”** is, on the hand, preferred in cases where calculation is almost impossible, and attempting to so calculate will amount to pure speculation. This applies, for instance, in cases where the deceased is a minor with no record of earnings, a person well past the retirement age, or a person whose exact occupational income cannot be determined with certainty. 3. It is however also important to note that where the income of the deceased is not ascertainable, the trial Court can still adopt the “***multiplier***” method but use the “***minimum wage***” stipulated by law in respect to the occupation in which the deceased was engaged in as “***multiplicand***”. I would call this hybrid the “***multiplier-minimum wage”*** method. This is the hybrid method that was applied by the trial Court in this case. 4. In this case, the trial Court awarded a “***global award***” sum of Kshs 2,500,000/-. I have looked at comparable case law and/or authorities in cases in which Courts have given awarded for “***loss of dependency***” in cases where the deceased had similar attributes to the deceased in this instant case, including the age, and found that the amount of Kshs 2,500,000/- awarded by the trial Court in this case is not too far off from what Courts have generally awarded. The family having lost a loved one, a son, at the age of 32 years old, I also honestly do not think that compensation of an amount of Kshs 2,500,000/- for a human being can be described as too high to amount to an error in principle. At the end of the day, regardless of the formula applied by the trial Court, the final amount of compensation it arrived at was, in my view, still reasonable. 5. In declining to interfere, I associate myself fully with the view adopted by **P.J. Otieno J** in **Stephen Murathi v Brenda Makena (Suing as the legal representative of the estate of Andrew Muthuri (deceased) [2021] eKLR**, in which he held that: **“19. In coming with the sum awarded, the court below appreciated that there was insufficient evidence on income and chose to award a global sum rather than adopt the multiplier formula. For that the court cannot be faulted because it was within its right to do so because the multiplier formula is just one of the tools in assessing damages. It isn’t a dogma and only applicable when appropriate. ……………………………………………………………………….** **20. I find no error of application of principles nor misapprehension of the evidence. Am thus left with the duty to find out if the sum was excessive. The law remains that the duty of assessment of damages in personal injury claims is a difficult one and false within the discretion of the trier of fact which discretion ought not be interfered with slightly unless the appellate court sets out to substitute its discretion for that of the trier of facts. However, the court was bound to rely on the evidence adduced and applicable principles. In have given anxious regard to the appellant’s complaint and I note that even if the court had opted for the multiplier formula and chosen the prevailing minimum wage as the multiplicand with a multiplier factor of say 20 years, the sum awardable could have not been so far from the impugned sum. I am equally satisfied that the deceased was the respondent’s husband and he was also gainfully engaged. I find that dependency was sufficiently proved when the plaintiff said that the deceased used to take care of the family and was never challenged even on cross examination. What was disputed is whether the deceased had children or not. In deed the particular of the children was not provided. That indeed was a bad omission but such would not affect the quantum awardable but important for the application and pay-out of the sum awarded. For that reason, I direct that, if the sum has not been paid out, the respondents counsel shall make an appropriate application before the trial court to state how the sum shall be shared between the dependants and the share to any minor be appropriately invested for the benefit of such minors.** **21. I therefore find and hold that the trial court cannot be faulted for awarding a global sum of Kshs 2,500,000 for loss of dependency considering the deceased age, good health and marital status.”** 1. In the instant case, too, since no documentary evidence was produced to prove the deceased’s monthly income, the trial Court could have adopted either the “***multiplier-minimum wage”*** hybrid method, or outrightly the “***global sum***” approach at its discretion. The trial Court adopted the latter. Since that was a choice that fell in the discretion of the trial Magistrate, and it has not been demonstrated that the sum awarded was inordinately too high to amount to an error in principle, I cannot say that the trial Magistrate misdirected himself in that regard. 2. In light of the foregoing, I decline to interfere with or disturb the trial Court’s assessment of damages for “***loss of dependency***”. **Final Orders** 1. In the end, this Appeal fails, and is accordingly dismissed with costs to the Respondent. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026** **…………………...……..** **WANANDA JOHN R ANURO** **JUDGE** **Delivered in the presence of:** | | | | | --- | --- | --- | | **Ms. Muresia for the Appellants** | | | | **Ms. Akinyi for the Respondent** | | | | **Court Assistant: Rodgers Tshombe** | | |