https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10304

Mwange & 2 others v Maingi (Suing as the Father and Personal Representative of the Estate of David Musila Wambua (Deceased)) (Civil Appeal E076 of 2024) [2026] KEHC 10304 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10304 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E076 of 2024 EO Bitta, J July 9, 2026 Between Peter Kyambi Mwange 1st Appellant Joseph Maina 2nd Appellant Jimmy Kuta 3rd Appellant and Paul Wambua Maingi (Suing as the Father and Personal Representative of the Estate of David Musila Wambua (Deceased)) Respondent Judgment 1.The Respondent, suing for the benefit of the estate of his deceased son, instituted a suit vide a Plaint dated 4th February 2018 seeking judgment against the Appellants jointly and severally for:a.Special damages of Kshs. 19,795;b.General damages under both the Law Reform Act and the Fatal Accidents Act;c.Costs of the suit; andd.Interest on the above. 2.The suit arose from a road traffic accident that occurred on or about 23rd November 2015 at approximately 4.30 a.m. along the Matuu–Mwingi Road. 3.It was pleaded that the 1st Appellant so negligently and/or carelessly drove, managed and/or controlled Motor Vehicle Registration No. KBQ 208W that he caused it to lose control, leave its lane, and collide with Motor Vehicle Registration No. KCD 363F Toyota Probox. 4.As a consequence of the collision, the deceased, who was lawfully travelling as a passenger in Motor Vehicle Registration No. KCD 362F, sustained fatal injuries. 5.The Appellants filed a defence denying the allegations and, in the alternative, pleaded that the accident was occasioned solely or substantially by the negligence of the driver of Motor Vehicle Registration No. KCD 362F and/or the Respondent. 6.Subsequently, the parties entered into a consent on liability at the ratio of 85:15 in favour of the Respondent against the Appellants, which consent was adopted as an order of the court. 7.Upon assessment of damages, the trial court, guided by the decision in Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (suing as the legal administrator of the Estate of the Late Robert Mwangi) (2019) eKLR, awarded Kshs.10,000 as damages for pain and suffering. 8.The court further relied on Easy Coach Bus Services & Another v Henry Charles Tsuma & Another (suing as the administrators and personal representatives of the Estate of Josephine Weyanga Tsuma (Deceased)) (2019) eKLR and awarded Kshs. 100,000 as damages for loss of expectation of life. 9.On the claim for loss of dependency, the trial court found that there was no evidence of the deceased’s actual earnings. Guided by the Court of Appeal decision in Isaack Kimani Kanyingi & Another (suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased)) v Hellena Wanjiru Rukanga (2020) eKLR, where the court advised on the use of the minimum wage as a multiplicand where earnings are unproved, the court adopted a multiplicand of Kshs. 14,025.40 as provided under Gazette Supplement No. 114 of 1st July 2022. 10.The court noted that the deceased died at the age of 27 years and, observing that superior courts commonly use the retirement age of 60 years in determining working life expectancy, adopted a multiplier of 33 years. 11.Since the deceased was unmarried, the court adopted a dependency ratio of one-third (1/3). 12.The trial court consequently calculated and awarded Kshs. 1,851,353.80 as damages for loss of dependency. 13.The court further awarded Kshs. 19,295 as special damages pleaded and proved. 14.Being dissatisfied with the decision of the trial court, the Appellants filed the present appeal. In their Memorandum of Appeal dated 12th March 2024, they raised the following grounds:a.The trial court erred in law and fact in awarding Kshs. 1,851,352.80 for loss of dependency.b.The trial court erred in law and fact in adopting an erroneous multiplicand and multiplier contrary to the evidence adduced, thereby arriving at an erroneous award for loss of dependency.c.The trial court erred in law and fact in failing to consider the Appellants’ submissions on loss of dependency. 15.The Appellants submitted that, being a first appeal, the court has a duty to re-evaluate and reconsider the evidence afresh, draw its own conclusions, and arrive at an independent judgment. They relied on Peters v Sunday Post Limited [1958] EA 424 for the proposition that an appellate court is not bound to accept the findings of fact made by the lower court. 16.The Appellants urged the court to re-evaluate the evidence concerning loss of dependency and submitted that the award of Kshs. 1,851,352.80 was inordinately high and based on an erroneous multiplicand and multiplier. 17.They argued that the Respondent pleaded in paragraph 10 of the Plaint that the deceased was a businessman earning a minimum of Kshs. 15,000 per month. 18.However, no documentary evidence was produced to support that assertion. No business records, bank statements, or other corroborative documents were tendered. 19.The Appellants further submitted that PW1, Paul Wambua Maingi, failed to produce evidence such as M-Pesa statements to prove the remittances allegedly received from the deceased. 20.They pointed out that the trial magistrate acknowledged this evidentiary gap at page 101 of the Record by stating:“Though the death certificate shows that he was indeed a businessman, there is no evidence of how much he was earning and whether indeed he was earning the said Kshs. 15,000 per month.” 21.Despite this finding, the Appellants contended that the trial court adopted a multiplicand of Kshs. 14,025.40 based on the minimum wage applicable in 2022 rather than in 2015 when the accident occurred. 22.The Appellants submitted that the court erred by relying on Legal Notice No. 114 of 2022, which prescribed a monthly minimum wage of Kshs. 14,025.40 for a general labourer. 23.They argued that the applicable law was Legal Notice No. 117 of 2015 (The Regulation of Wages (General) (Amendment) Order, 2015), which was in force on 23rd November 2015. 24.According to the Appellants, the correct multiplicand ought to have been Kshs. 5,844.20 as provided under Column 4 of Legal Notice No. 117 of 2015. 25.Regarding the multiplier, the Appellants complained that the trial court failed to discount the working life expectancy to account for the contingencies and vicissitudes of life. 26.They submitted that life is inherently uncertain and that there was no guarantee that the deceased would have worked uninterruptedly for 33 years due to illness, unemployment, economic downturns, or other personal circumstances. 27.They further argued that although a multiplier of 33 years for a 27-year-old was theoretically possible, it represented the highest end of the range and was excessive in the absence of evidence of impeccable health and guaranteed lifelong employment. 28.The Appellants also emphasized that the deceased was unmarried and had no children. 29.His only dependants were his parents. According to paragraph 10 of the Plaint, the father was aged 52 years at the time of the deceased’s death, while the mother was aged 49 years. 30.They further pointed out that PW1 stated during cross-examination that his wife was 73 years old at the time of testifying, which would have made her approximately 65 years old at the time of the deceased’s death. 31.The Appellants submitted that dependency should be measured not by how long the deceased might have worked but by the period during which the dependants would reasonably have depended on him. 32.They argued that it is a settled principle that a deceased person cannot provide support beyond the lifespan of the dependant and that dependency ceases upon the death of the dependants, not upon the deceased’s hypothetical retirement. 33.The Appellants relied on World Health Organization data for 2015 showing that life expectancy in Kenya was approximately 61 years for males and 66 years for females. 34.Applying those figures, they argued that: The father, aged 52 years in 2015, had an estimated remaining life expectancy of approximately 9 years (61 – 52). 35.The mother, aged 65 years in 2015, had an estimated remaining life expectancy of approximately 1 year (66 – 65). 36.The Appellants further relied on Hellen Waruguru Waweru (suing as the legal representative of the Estate of Peter Waweru Mwenja (Deceased)) v Kiarie Shoe Stores Limited [2015] eKLR, where the Court emphasized that a multiplier must be reasonable and account for the vicissitudes of life. 37.They also cited Chunibhai J. Patel & Another v P.F. Hayes & Others [1957] EA 748, 749, where the Court of Appeal held:“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 dependants.” 38.On that basis, the Appellants submitted that, taking into account the uncertainties of life and the life expectancy of the dependants, a reasonable multiplier would be 10 years. 39.They relied on Roger Dainty v Mwingi Haji & Another [2004] eKLR, where the Court of Appeal upheld a multiplier of 10 years for a deceased aged 27 years. 40.The Appellants therefore urged the appellate court to set aside the award for loss of dependency and substitute it with the following computation: Multiplicand: Kshs. 5,844.20 (Legal Notice No. 117 of 2015); Multiplier: 10 years; Dependency Ratio: 1/3.Loss of Dependency: Kshs. 5,844.20 × 12 months × 10 years × 1/3 = Kshs. 233,768. 41.The Respondent opposed the appeal and submitted that the trial court neither erred in law nor fact in assessing damages for loss of dependency and that both the multiplier and multiplicand adopted were proper. 42.The Respondent relied on Victor Hosea Letting (suing as the administrator of the Estate of Sylvia Jepchirchir (Deceased)) v Anwarali & Brothers Limited & Another, Civil Case No. 316 of 2014, Nairobi (decided on 28th February 2019), where a multiplier of 33 years was adopted for a deceased aged 27 years. 43.The Respondent also relied on Jeremiah Kiptoo Boinet (suing on behalf of the Estate of Derrick Kipkosgei Boinet) v Martin Maina Mburu & Another, Civil Case No. 145 of 2015, Nairobi (Milimani Law Courts), decided on 23rd February 2024, where the High Court similarly adopted a multiplier of 33 years for a deceased aged 27 years. 44.Having considered the Memorandum of Appeal, the Record of Appeal, and the parties' respective submissions, the following issues arise for determination: 45.Whether the trial court properly exercised its discretion in assessing damages for loss of dependency, particularly in adopting a multiplicand of Kshs. 14,025.40 and a multiplier of 33 years, 46.Whether the resultant award of Kshs. 1,851,353.80 ought to be disturbed on appeal. 47.On the first issue: The accident occurred on 23rd November 2015, and the deceased died in 2015. 48.The trial court found that there was no proof of the deceased's earnings and therefore resorted to the minimum wage. 49.The Court of Appeal in Isaack Kimani Kanyingi & Another v Hellena Wanjiru Rukanga (2020) eKLR approved the use of minimum wage where income cannot be ascertained. 50.In Retco East Africa Limited v Josephine Kwamboka Nyachaki & Another [2021] KLR, the High Court held that where the deceased died in 2015, the applicable minimum wage was that prescribed under Legal Notice No. 117 of 2015 and adopted Kshs. 5,744.20 as the multiplicand. 51.I am of the considered view that, once the trial court accepted that earnings had not been proved, the court ought to have applied the wage applicable at the time of death rather than the 2022 minimum wage under Gazette Supplement No. 114 of 2022; there was no principled basis for applying a 2022 wage order to a death that occurred in 2015. 52.To my mind, that constituted an error of principle and would justify appellate intervention. 53.On the second issue, the deceased died aged 27 years. 54.Courts have adopted multipliers ranging between 25 and 33 years for deceased persons in their twenties depending on the circumstances of each case. 55.The Respondent cited authorities where a multiplier of 33 years was adopted for a deceased aged 27 years. 56.The rationale is that the deceased had potentially 33 years of working life remaining up to the retirement age of 60 years. 57.However, I believe that the Appellants are correct that a multiplier is not arrived at by a purely mathematical exercise. 58.Courts ought to consider the uncertainties and vicissitudes of life. 59.In the oft-quoted case of Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd [2015] eKLR, (supra), the Court of Appeal reiterated that an appellate court may interfere where the trial court acted on wrong principles and emphasized the need to consider the working life of the deceased and the expectations of life of the dependants. 60.Similarly, the principle enunciated in Chunibhai J. Patel v P.F. Hayes & Others [1957] EA 748 is that courts should consider both the deceased's expected working life and the life expectancy of the dependants. 61.In this case, the only dependants were the deceased's parents. 62.Unlike a situation involving young children or a spouse, parental dependency is ordinarily expected to diminish with advancing age. 63.The age of the parents as dependants ought to have been taken into account in considering the period of dependency. 64.That was a material fact that ought to have been taken into account by the Court; for that reason, while I would not agree with the Appellants' proposed multiplier of 10 years, which is too low, I consider 33 years to be on the higher side in the peculiar circumstances of this case. 65.A multiplier of 25 years would, in my view, more appropriately balance the deceased's age against the dependency profile of the ageing parents. 66.Considering all the aforesaid, the well-settled appellate principles are that an appellate court will only interfere with an award if the trial court took into account an irrelevant factor, failed to consider a relevant factor, or arrived at an award that is inordinately high or low as to represent an erroneous estimate. 67.In the present matter, the use of a 2022 minimum wage order to assess a 2015 death appears to be a clear misdirection. 68.The upshot is that I find that the trial court erred in principle in adopting the 2022 minimum wage instead of the wage applicable in 2015. 69.I find that the multiplier of 33 years was excessive given that the only dependants were elderly parents, which factor the trial court ought to have considered but failed to. 70.The Appellant has made a case for setting aside the award for loss of dependency. 71.I would assess the general damages for loss of dependency as follows;Kshs. 5,844.20 x 12 x 25x1/3=584,420 72.Since the Appeal partially succeeds, I consider it equitable for each party to bear their respective costs.Consequently, I order as follows;A.The award of KShs 1,851,353.80/- as damages for loss of dependency is hereby set aside and substituted with an award of KShs 584,420/-B.Each party to bear their own costs. DELIVERED VIA MICROSOFT TEAMS, THIS 9TH DAY OF JULY 2026 AT MOMBASAEMMANUEL BITTAJUDGE OF THE HIGH COURTDelivered in the presence of:C/A SalwaNjeri Ikubi for AppellantsGichimu for Respondent