Motorology Ltd & another v Esther Chamboi & another (Suing as the legal representatives and administrators of the Estate of the Late Julius Kimeli Lagat - Deceased) (Civil Appeal E235 of 2023) [2026] KEHC 12597 (KLR) (4 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET**​ **CIVIL APPEAL NO. E235 OF 2023** **MOTOROLOGY LIMITED**​…………………………………………………...…….**1ST APPELLANT** **EDWIN KIPCHIRCHIR KIRUI**​…………..……………………….…….………**2nd APPELLANT** **VERSUS** **ESTHER CHAMBOI & JAMES KIPLAGAT SANG** *{Suing as the legal representatives and administrators of the estate of the late* **JULIUS KIMEL1 LAGAT-DCD) …………………………………RESPONDENT** **(Being an appeal from the judgment and decree of Hon. PETER NYAGAKA ARERI (PM) delivered on 31s' October, 2023 in ELDORET CMCC NO. E389 of 2022; ESTHER ICHAMBOI & JAMES KIPLAGAT SANG** *{Suing as the legal representatives and administrators of the estate of the late* **JULIUS KIMELI LAGAT DCD) -VS MOTOROLOGY LIMITED).** **BETWEEN** **ESTHER CHAMBOI & JAMES KIPLAGAT SANG** (Suing as the legal representatives and administrators of the estate of the late **JULIUS KIMELI LAGAT-DCD) AND** **MOTOROLOGY LIMITED EDWIN KIPCHIRCHIR KIRUI** **JUDGMENT** **Brief Background** 1. The Respondents filed the suit being **ELDORET CMCC NO. E389 of 2022;ESTHER ICHAMBOI & JAMES KIPLAGAT SANG** *(Suing as the legal representatives and administrators of the estate of the late* **JULIUS KIMELI LAGAT DCD) -VS MOTOROLOGY LIMITED)** that is subject of this appeal against the Appellants on behalf of estate of deceased seeking for compensation as a result of road traffic accident that occurred on 18-6-2021 out of which the deceased sustained fatal bodily injuries to which he succumbed. 2. They prayed for Judgement against the appellants for:- 3. Damages under the Fatal Accidents Act and the Law Reform Act. 4. Special damages as stated above and further to be adduced and ​proved at ​the hearing hereof. 5. Costs of this suit and interest. 6. The case proceeded to a full hearing after which the parties filed their submissions which the trial court considered before delivering its judgment on 2nd November 2023 in favor of the Respondents against the Appellants. 7. Being dissatisfied with the judgment, the appellants filed a Memorandum of appeal wherein the appellant seeks for orders that:- 8. The Judgment dated and delivered on 2nd November, 2023 and the Decree of the subordinate Court be set aside and substituted with a proper finding by this Honorable Court. 9. The Honourable Court be pleased to make any or further orders as may be just and expedient in the circumstances. 10. Costs of the appeal be awarded to the Appellants. 11. They raise the following grounds of appeal; 12. The learned trial magistrate erred in Law and Fact in failing to appreciate the reasonable and peculiar circumstances of the case and submissions made on behalf of the Appellant and treating the same superficially and consequently coming to a wrong conclusion on award of Damages. 13. The learned trial magistrate erred in Law and Fact in awarding general damages that was excessive in the circumstance. 14. The learned trial magistrate erred in Law and Fact in assessing loss of dependency using the multiplier-multiplicand approach method where the facts and evidence were not facilitative hence arriving at an erroneous, excessive and inordinately high award of Kshs.4,200,000/= which award amounts to a miscarriage of justice. 15. The learned Magistrate erred in law and in fact in applying a dependency ratio of ​2/3 (two-thirds) when dependency was not proven to the legal standards and further applying deceased’s income of kshs. 25,000/=per month even after making a finding that the same had not been proven and/or there was no evidence proving income hence proceeding to make erroneous award. 16. The learned trial magistrate erred in Law and Fact in not sufficiently taking into account, in totality, all the reasonable and sufficient evidence on award of loss of expectation of life consequently proceeded on wrong principles (if any) thus arriving at an excessive award of Kshs.170,000/=. 17. The learned trial magistrate erred in law and fact in failing to evaluate the evidence in its totality and in failing to take into consideration the submissions filed by the parties particularly the submissions and authorities cited by the Appellants. 18. The learned trial magistrate failed to exercise his discretion judiciously in awarding damages and failed to apply the settled principles. 1. ​The learned trial magistrate failed to, generally, judicially apply and to adequately evaluate the evidence tendered and thereby arrived at a decision unsustainable in law. **The Appellant’s Case** 1. The Appellant has faulted the discretion of the magistrate when making an award of loss of dependency on ground that the dependency was not sufficiently proven and thus the application of two-thirds dependency ratio was an error in principle. 2. The Appellants further submit that the application of the deceased’s income of kshs. 25,000/= was not sufficiently proven thus there is no evidential basis to apply the said amount in calculating the loss of dependency according to them. 3. They place reliance in The Court of **Appeal in Shabani v. City Council of Nairobi, (1985) KLR 516 at 518-9** sets out the test for interference with awards of damages by the trial court as follows: *“The test as to when an appellate Court may interfere with an award of damages was stated by Law JA in Butt v Khan, Civil Appeal 40 of 1977 (a case referred to in another context by the learned judge) as follows:* *“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that the misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”* 1. They submit that the trial court’s discretion to apply the multiplier-multiplicand method of assessment of damages was erroneous as the same was not supported by the evidence and amounted to conjecture. 2. The court clearly observed that the plaintiff had not availed any evidence to prove income of kshs. 25,000/= per month and but applied the same in calculating the loss of dependency without giving any reasons. 3. The dependency was also presumptive as there was no evidence that the other siblings of the deceased, who are adults, were being supported or were the dependents of the deceased and in any case, the law under the Fatal Accidents Act section 4 does not provide for the siblings. Further, on the dependency ratio, the plaintiff had themselves conceded in their submissions before the trial court that the deceased was supporting them in the ratio of one-third of his income having not married or had children. 4. It was therefore erroneous for the trial magistrate to adopt a two-third dependency ratio where there was no evidence of the same and contrary to the submissions of the Plaintiff according to them. 5. They consequently urge the court to disturb the findings on the awards under loss of dependency and allow what they had submitted as an approach/method of assessment of lump sum award. 6. They pray that the reasonable award is lump sum of kshs. 1,000,000/=and we place reliance, for guidance, in the decision in the case of **Mkamba & another (Legal Representative of the Estate Of Daniel Khonde Stephen - Deceased) v Motoronomy East Africa Limited (Civil Case E007 of 2025) [2026] KEMC 57 (KLR) (11 February 2026) (Judgment)** where the high court sitting on appeal when faced with similar and/or comparable circumstance as the ones in this appeal, adopted a lump sum approach and awarded kshs. 1,000,000/= as loss of dependency. 7. On the question whether the trial magistrate erred in law and fact in assessing the award of loss of expectation of life, the appellants submits that the amount of kshs. 170,000/= is excessive and outside the awards in other comparable cases wherein court’s have awarded conventional amount of kshs. 100,000/=. 8. Both the parties had submitted the conventional amount of kshs.100,000/= which the court disregarded without any justification. 9. They rely on the case of **Mkamba & another (Legal Representative of the Estate Of Daniel Khonde Stephen - Deceased) v Motoronomy East Africa Limited (Civil Case E007 of 2025) [2026] KEMC 57 (KLR) (11 February 2026) (Judgment)** where an award of similar amount was awarded under the loss of expectation of life. 10. They seek costs within the dictates of Section 27 of the civil procedure Act. 11. They submit that an award of Kshs.1,000,000/= for loss of dependency, kshs. 100,000/= for loss of expectation of life and the other awards to remain undisturbed. **The Respondents’ Case** 1. In opposing the Appeal they raise an issue whether the award of general damages was excessive in the circumstances. 2. It is their case that it is settled law that the assessment of damages is a matter of judicial discretion and an appellate court will only interfere where the trial court acted on wrong principles or awarded so high or low a sum as to make the award an entirely erroneous estimate as was settled by this Honourable Court in ***Ratemo v Ogaro(Civil Appeal E098of2021)***​***2024KEHC14539***​***(KLR)*** ***(18November2024)(Judgment).*** In the instant case, the award of **Kshs. 4,420,000/=** was based on medical evidence produced at trial and comparable authorities cited. 3. The trial court duly considered the circumstances of the case and precedents before arriving at the figure. 4. They submit that the Appellants have not demonstrated that the learned magistrate acted on wrong principles or that the award was inordinately high. 5. This Honourable Court should therefore uphold the award as fair and reasonable in the circumstances. **whether the trial court erred in applying the multiplier-multiplicand approach in assessing loss of dependency.** 1. The dependency ratio of 2/3 is a conventional standard where the deceased had a family according to the Respondents. 2. They submit that where income is not supported by pay slips (common in informal business), the court is allowed to use a reasonable estimate based on the nature of the work. 3. In the above case, the court held that assessment of damages is an exercise of judicial discretion. The deceased was a businessman; Kshs. 25,000/= is well within the realm of a reasonable living wage in the current economic climate. 4. In the present case, The deceased’s occupation as a businessman was established; 1. Income was testified to and not rebutted; 2. Dependents were identified through documentary evidence. 3. The trial court therefore correctly exercised its discretion in applying the multiplier approach and applying the deceased’s income of Kshs.25,000/=. 4. They had pleaded particulars pursuant to the fatal accidents act - Cap 32 of the laws of Kenya. ​ **Loss of Future Dependency** 1. The plaintiffs are the mother and brother to the late (deceased) and brought the action for herself and on behalf of the following defendants/beneficiaries 2. **ESTHER CHAMBOI - MOTHER** 3. **JULIUS KIMELI LAGAT - BROTHER** 4. **ABRAHAM KIPCHUMBA MUREI - BROTHER** 5. The deceased at the time of his untimely death, was 39 years of age and enjoyed good health. He was a successful business man earning an average income of Kshs.25,000/= per month and by reason of his death, his dependants have lost support and suffered loss dependency and damages. 6. They also pleaded particulars pursuant to the Law Reform Act Cap 26 of the laws of Kenya section 2(1) (c*)* and 3 (5)1.They submit that the deceased was aged 39 years at the time he met his untimely death and enjoyed good healthy life and by reason aforesaid the deceased’s expectation of life was cut short unexpectedly and his estate has thereby suffered loss, injury and damages. 1. On the issue of costs, the respondent relies onSection 27 of the Civil Procedure Act provides: ***“****Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:”* 1. Similarly, in *Cecilia Karuru Neavu v Barclays Bank of Kenya & another /20161 eKLR,* Justice John M. Mativo explained thus: *“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course****”*** 1. The Respondents submit that the appeal should be dismissed and the Respondents be awarded costs. **Analysis and Determination.** 1. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence placed before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 1. **In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA,**The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 2. This principle was enunciated thus***:"..****.this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…”* 3. The trial Court assessed damages under the Law Reform Act as follows: 1. *Pain suffering and loss of amenities* *The deceased was injured on 18/6/2021 and died on 30/1/2022 in my assessment the deceased suffered a lot of pain for all that period and I will award KSH 50,000 under this sub head.* 1. *loss of expectation of life* *Taking into consideration the age of the deceased at the time she met her death, state of our economy, the rate of inflation and the practice in our courts I will award a global sum of KSH 170,000/-.* 1. *loss of dependency.* *The deceased was 39 years old and was working as a boda rider and farmer with no specified monthly income. Had he not met his demise through the road traffic accident she could worked until retirement at the age of 60 years. It is therefore evidently clear that he could have worked for 21 more years before he reached 60 years. He further told the court that the deceased was not married and did not have children of his own.* *He further told the court that the family, that is their mother and other sibling depended on the deceased for financial support. The deceased being unmarried and having no children could have spent 1/3 of here earnings on himself and the other 2/3 on his family members and the dairy farming.* *Using a multiplicand of KSH 25,000, a ratio of 2/3 and a multiplier of 38 years, I will calculate loss of dependency as follows;-* *KSH 25,000×12×21×2/3 = KSH 4,200,000* *Special damages* *It is trite law that special damages must be specifically pleaded and specifically proved.* *The plaintiff pleaded funeral expenses, limited grant ksh150,000, medical expenses of Ksh 17,500, legal fees of KSH 45,000 and motor vehicle records of Ksh 550.The plaintiff produced a receipt for KSH 550 paid for copy of motor vehicle records Ksh 26,000 paid for the mortuary services and KSH 280 for Postage. I will award the Ksh 26,830 proved.* In a nutshell judgment is entered for the plaintiff as hereunder: - (a) Liability 70: 30 in favour of the plaintiff against the defendants. (b) Quantum * 1. pain and suffering = KSH 50,000 2. loss of expectation of life=KSH 170,000 3. loss of dependency = KSH 4,200,000 4. Special damages = KSH 26,830 Subtotal = KSH 4,446, 1830 Less 30% agreed contribution=KSH 1,334,049 Grand total =KSH 3,112781/- 1. In awarding Compensation under the Law Reform Act The family is compensated for the pain and suffering of the deceased and the loss of expectation of life of the deceased. 2. The generally accepted principle is that very nominal damages will be awarded under these heads if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. 3. In the instant appeal the deceased was injured on 18/6/2021 and died on 30/1/2022.The amount of Kshs.50,000 as awarded by the court is conventional ambit and I find that the trial court cannot be faulted. 4. While looking at the head of loss of expectation of life I am guided by the case of **Benham vs Gambling, (1941) AC 157** where it was held that only moderate awards should be granted for loss of expectation of life for the following reasons:- *“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”* 1. To assess damages under the Fatal Accidents Act it is necessary to determine the deceased’s income, the dependency ratio of his dependants and the multiplier to be applied. The deceased’s income is calculated per year as is called the multiplicand. The multiplier are the number of years the deceased was expected to work until retirement. 1. In the case of **Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported)** Ringera J. as he then was, held at page 248 as follows***:-*** *“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”* 1. The Court of Appeal for Eastern Africa in **Chunibhai J. Patel and Another v P. F. Hayes and Others [1957] EA 748, 749** stated the following succinct statement of law; “*The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so may years purchase. The multiplier will bear a relation to the expectation of the earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her, as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum that the court should apportion among the various dependants”. [Emphasis mine].* 1. In **Leonard O. Elisa & Another v Major K. Birgen (2005) eKLR** it was held:-*“It is obvious from the above two cases, that the courts have been defining net income to mean gross income less tax element.”* 2. In **Mwanzia v Ngalali Mutua Kenya Bus Ltd** and quoted in **Albert Odawa -Vs- Gichumu Githenji NKU HCCA NO.15 OF 2003 (2007), KLR**, Justice Ringera was of the following view; *“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. In **Mary Khayesi Awalo & Another v Mwilu Malungu & Another ELD HCCC NO. 19 OF 1997 [1999] EKLR** where Nambuye J., stated that:- *“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 courts 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. The court has addressed its mind to the issue whether the awarded for loss of dependency is in the circumstances of this case is so inordinately low or high to have been wholly an erroneous estimate of the damages. 2. The general rule is that, an appellate court should be slow to interfere with the discretion of the trial court in the award of damages unless the trial court is shown to have acted on wrong principles of the law, that is to say, it took into account an irrelevant factor or failed to take into account a relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. **(See Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M.M. Lubia & Another (1982-88) 1 KAR 777).** 3. In **Bon Ton Ltd vs Beatrice Kanaga suing as Administrator of the estate of Richard Olembi Ochenga [2018] eKLR** a motorcycle rider was awarded Kshs. 800,000/=. **In yugi Judith and Anor vs Fredrick Odhiambo & 3 others [2014] e KLR**, similarly a motorcycle rider was awarded Kshs. 700,000/= as a global sum. 4. PW1 told the court that the deceased used to sell milk and used to make a net pay was KSH 25,000 but did not produce any records to confirm the exact amount. The Death Certificate shows that the deceased died at the age of 39years and his occupation has been indicated as a farmer. The abstract shows that the deceased was a rider also known as the boda boda operator. 5. On the multiplier, the deceased was in good health prior to the accident and his death and therefore would have worked upto the retirement /end of productivity age of 65 years and therefore we urge the court to adopt a multiplier of 39 years being the remainder of the years. 6. He was in the prime of his life when he met his death. Taking into account all the circumstances in this case, I find the sum of sum awarded by the trial court was in tandem with the principles as enunciated in the above precedents and I do not find any justification to interfere with the judgment. **Determination** 1. The appeal Lacks merit **Costs**: The Supreme Court in the case of **Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,**” *In the classic common law style, the courts have to proceed on a case-by-case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”* The appellants shall shoulder costs. **Order**; The appeal is dismissed with costs. **Dated, Signed and Delivered in court at Eldoret this 4th Day of August 2026.** **…………………………** **JOHN CHIGITI (SC)** **JUDGE**