[2022] KEHC 212 (KLR)

Osoro & 2 others v Msango & another ((Suing as the Legal Representatives of the Estate of Nicholas Brown Mwangemi (Deceased)) (Civil Appeal 65 of 2019) [2022] KEHC 212 (KLR) (15 March 2022) (Judgment)

Neutral citation: [2022] KEHC 212 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 65 of 2019

MW Muigai, J

March 15, 2022

Between

Gregory Onunga Osoro

1st Appellant

Emily Muyoni Mwangangi

2nd Appellant

Unilever Kenya Limited

3rd Appellant

and

Dianah Winnie Msango & Dominic Wanjala Righa Nicholas Brown Mwangemi

Respondent

(Suing as the Legal Representatives of the Estate of Nicholas Brown Mwangemi (Deceased)

(Being an appeal from the judgment of the Honourable Magistrate J.A Agonda (SRM) delivered on 29th March, 2019)

Judgment

1. PLAINT DATED 1/04/2016By a Plaint dated 1st April, 2016 and filed on 4th April, 2016, the Respondents as the Plaintiffs suing as the Legal Representative of the estate of Nicholas Brown Mwangemi (Deceased) sued the Appellants as the Defendants in Mavoko PMCC No. 250 of 2016. The Respondents sought damages both under the Fatal Accident and Law Reform Act, costs and interest.

2. The cause of action arose from a road traffic accident that occurred on 1st August, 2015 when the deceased is said to have been a lawful pedestrian beside the road along Mombasa Road at Mlolongo and was hit by motor vehicle registration number KBS 338H Toyota Station Wagon co-owned by the 2nd and 3rd Appellants. The deceased succumbed to his injuries.

3. The particulars of negligence against the 1st Appellant are pleaded at paragraph 7(a) to (k) of the Plaint. It is pleaded that the 2nd and 3rd Appellants are vicariously liable for the acts and/or omissions of the 1st Appellant. The Appellants pleaded the doctrine of Res Ipsa Loquitor and placed reliance on the provisions of the Traffic Act and Highway Code.JOINT DEFENCE DATED 19/05/2016

4. The 3rd Appellant pleaded that it only has a financial interest in motor vehicle registration number KBS 338H as it advanced money to the 2nd Appellant to purchase the motor vehicle but not involved or has control over the day to day running of the said motor vehicle.

5. According to the Appellants, the deceased was attempting to pass on the road when it was not safe to do so. They have denied the Respondents particulars of negligence, particulars of statute and special damages as pleaded in the Plaint. They pleaded at paragraph 12 of the Plaint that the suit is bad in law, incurably defective.EVIDENCE

6. PW1, No.xxxx PC Ibrahim Kemboi from Athi River Traffic Base stated that the deceased was involved in a road accident on 1st August, 2015 at 3. 00 am in Mlolongo Township involving motor vehicle registration number KBS 338H Toyota Fielder. He stated that the pedestrian was crossing the road from left to right and knocked down by the said motor vehicle and there was an unknown lorry that hit the deceased. PW1 stated that the deceased was taken to Shalom where he succumbed to his injuries. He produced the police abstract dated 31st August, 2015 as PEX-1 which was indicated that the case was still pending under investigation.

7. According to PW1, motor vehicle KBS 338N was the first to hit the deceased and threw the deceased on the other lane where he was hit by the lorry. He stated that the deceased was crossing the road but the road was not marked at the time but now marked as pedestrian crossing. According to PW1, the motor vehicle was being driven at a high speed.

8. In cross-examination, PW1 stated that in 2015 the road was not marked. According to PW1, the driver ought to have taken caution and slowed down since it was a town with many people. He stated that there was no zebra crossing. It was his testimony that it was 50 meters from the bump. He stated that he could not tell the motor vehicle was over speeding.

9. In re-examination, PW1 stated that there was no zebra crossing and pedestrian could cross anywhere on the road.

10. PW2, Dianah Winnie Msango stated that on 1st August, 2015 she was in Mombasa and it was the deceased’s cousin who informed her. She produced the letters of administration as PEX-2, death certificate PEX-3,postmortem PEX-4, Chief’s letter PEX-5 and filing fees receipt of Kshs.1,025 PEX-6, copy of motor vehicle search PEX-7 and Demand letter PEX-8. According to PW2, the deceased died immediately. She stated that the dependents are her and three children namely Cecilia Mwangemi-9 years, Jared Mwangemi-2 years, Samuel Mwangemi-8 months.

11. According to PW2, the deceased was a driver by profession earning Kshs.700/- per day but she stated that she didn’t have any documentary evidence as well as funeral expenses receipts in the sum of Kshs.20,000/-. She stated that her husband was the sole bread winner who paid rent, clothing and education for their children. She blamed the driver for the loss asserting that if the driver drove safely, her husband would not have died.

12. In cross-examination, PW2 stated that she was a housewife when the accident occurred. She stated that the deceased cousin did not witness the accident. She stated that she did not have a letter to prove that the deceased was employed or earned Kshs.700/- per day. She stated that the driver drove carelessly but stated that she did not have any evidence.

13. In re-examination, PW2 stated that the information she got was that the driver was to blame for the accident. She stated that she managed to get an eye witness.

14. PW3, Edward Nduati Njenga, adopted his witness statement filed on 29th August, 2017. According to PW3, on 1st August,2015 the accident occurred between the deceased and motor vehicle registration number KBS 338H Silver Fielder Toyota which was coming from Nairobi going to Kitengela between Mlolongo Weighbridge. According to PW3, there were people, shops and bumps.

15. In cross-examination, PW3 stated that there was a person who was knocked at Mlolongo Weighbridge by the motor vehicle herein. According to PW3, the motor vehicle hit him when he was about to finish crossing the road. He stated that the motor vehicle came at a high speed and lost control while overtaking. According to PW3, it was a separate road-one way traffic with two lanes.

16. It was PW3 testimony that he was standing at the road side on the left when the Toyota Fielder was overtaking another private motor vehicle that was on its lane. PW3 stated that he saw the pedestrian crossing the road when the motor vehicle was over speeding at the bump and moved out of the road. According to PW3, the police visited the scene of the accident and he left for Mombasa. He stated that the deceased was his colleague in the transport industry.

17. DW1, Gregory Osoro Onunga adopted his witness statement dated 4th May, 2017. According to DW1 on 1st August, 2015 he was leaving work when at KQ just after Mlolongo Bump while driving parallel to a trailer and about to finish overtaking the trailer, he saw someone crossing the road at a close range and tried to break but unfortunately hit him. According to DW1, the person hit fell on the right side of the road in a ditch. He stated that he stopped his motor vehicle, got out to check the state of the pedestrian and waited for the police to visit the scene. According to DW1 it was at 2. 30 a.m and dark. DW1 stated that he was driving parallel to a trailer and not a small car on his right lane. According to DW1 they went to Shalom Hospital after the police arrived and his motor vehicle was towed to the police station.

18. DW1, blamed the pedestrian for the accident for crossing the road in undesignated area. According to DW1, the road was not clear. He stated that the trailer had obstructed his 360 degrees view.

19. In cross-examination, DW1 stated that in 2015 there was a fly over but stated that he did not have proof that there was designated bridge. He stated that he did not have an eye witness since he was alone in the car. He stated that he did not apply an evasive action like hooting and applying any brakes. According to DW1, he knocked the pedestrian who was some distant to the bump. It was DW1 testimony that it was built up area with people but at that time there were no pedestrians. According to DW1, it was 70kmph which was high-great impact to that person. He stated that the front bumper and windscreen were damaged. According to DW1 the motor vehicle could be damaged but not on speed. He stated that the pedestrian fell on the ditch but in the witness statement he stated that the pedestrian fell on the road. It was DW1 testimony when he left his motor vehicle he found the pedestrian who had fallen on the road on the ditch. He stated that his right side of the motor vehicle was damaged. According to DW1, the pedestrian was not off the road.

20. In re-examination, DW1 stated that the pedestrian was coming from the left side ahead of the trailer to the right. According to DW1, there is a fly over on the road which is 200 meters from the scene of the accident. He stated that he did not have time for evasive actions. The accident occurred at 3. 00 am. According to DW1, he did not expect to find many people on the road.TRIAL COURT’S JUDGEMENT

21. The Trial Magistrate in the Judgment, entered judgment against the Defendants on liability at 100% and awarded the deceased Kshs.30,000/- as damages for pain and suffering, damages for Loss of expectation of life of Kshs.120,000/-, damages for Loss of dependency of Kshs.1, 600,000/- and special damages of Kshs. 1,025 plus costs and interest.APPEAL DATED 25/4/2019

22. Aggrieved by the Judgment, the Appellants have appealed citing the following grounds:-(1)THAT the Learned Trial Magistrate erred in law and in fact in failing to consider the Defendant’s evidence by way of submissions on record.(2)THAT the Learned Trial Magistrate erred in law and in fact in finding the Defendant wholly liable for the alleged accident by totally ignoring the evidence on record.(3)THAT the Learned Trial Magistrate erred in law and in fact by finding judgement against the Appellants herein without first making a determination on the issue of liability whatsoever.(4)THAT the Learned Trial Magistrate erred in fact and in law by making an award under both the Law Reform Act and the Fatal Accident Act without deducting the former from the other.(5)THAT the Learned Trial Magistrate erred in law and in facts by making an award under the Fatal Accident Act when there was no evidence of proof of earnings.(6)THAT the Learned Trial Magistrate erred in law and fact by awarding excessive amount of Kshs.120,000/-for loss of expectation of life Kshs.1,600,000/- for loss of dependency and Kshs. 30,000/- for pain and suffering disregarding the Defendant’s submissions on the issue. 7. THAT the Learned Trial Magistrate acted in error when she failed to properly evaluate evidence on record thus reaching erroneous decision.

8. THAT the Learned Trial Magistrate (sic) decision was unjust, against the weight of evidence was based on wrong principles of law and occasioned miscarriage of justice.

23. The Appellants urge the court to set aside the Judgment of the Trial Court and substitute with a Judgment dismissing the Respondents case with costs to the Appellants or alternatively substitute the Trial Court Judgment as it deems fit, just and expedient. The Appellants pray for the costs of this appeal.APPELLANTS SUBMISSIONS

24. On behalf of the Appellants, the Trial Magistrate failed to apportion equal blame on the driver and pedestrian. Reliance was placed on the cases of Berckey Steward Ltd & Others vs. Lewis Kimani Wayaki [1982-88] KAR 1118, Baker vs. Market Hark Burough Industrial Co-opertaive Society Ltd [1953] 1WLR, Julius Muriuki Mutiria vs. Joseph Mogere & 2 Others [2017] eKLR, Andrew Kamau Waweru vs.Guchu Muruguri & Another [2002] eKLR, Leonard Kamenwa Njenga vs. David Maina Mbugua[2019] eKLR and Hussein Omar Farah vs. Lento Agencies, CA No. 34/2005, [2006] eKLR, Julius Omollo Chanda & Another vs. Samson Nyaga Kinyua [2010] eKLR and Patrick Mutie Kamau & Another vs. Judy Wambui Ndurumo [1997] eKLR that the pedestrian too owe a duty of care to other road users to move with due care and follow the Highway Code.

25. As regards the earnings, it is submitted that the Trial Magistrate erred in using a multiplicand of Kshs. 10,000/- instead of Kshs.9, 507. 90 which was inclusive of the statutory deductions.

26. The Appellants contended that the award under the Law Reform Act should have been deducted from the award made under the Fatal Accidents Act. Reliance was placed on the case of Hellen Waruguru Waweru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Limited[2015] eKLR.

27. As regards the multiplier adopted by the Trial Magistrate, the Appellants relied on the case ofAlex Koech & Another vs. Mary N. Odhiambo HCCA No. 42 of 2016 [2018] eKLR where the court adopted a multiplier of 15 years for the deceased who was aged 35 years at the time of death. The Appellants urge the court to reduce the multiplier to 15 years.

28. The Appellants urge the court to disturb the award of general damages for being inordinately high or excessive and find the Trial Magistrate proceeded on wrong principles or misapprehension of the law.RESPONDENTS SUBMISSIONS

29. As regards liability apportioned by the Trial Magistrate against the Appellants, it is submitted that the police officer, PW2 stated that the deceased was crossing the Nairobi-Mombasa road from the left to the right when he was hit the motor vehicle registration number KBS 338H. According to the Respondents, the police stated that the area was built up and therefore the driver owed a high duty of care considering that the deceased was hit while he was 50 meters from the bump. The Appellants pointed out that PW3, Edward Njenga stated that the deceased was almost done crossing the road when he was knocked down while the driver was overtaking.

30. It is submitted that DW1, Gregory Osoro Onunga confirmed the occurrence of the accident and stated that he was also overtaking a trailer when the accident occurred and never applied an evasive action like hooting or applying emergency brake. The Respondents urge the court to find the Appellants 100% liable for the accident.

31. According to the Respondents, the Trial Magistrate did not err to award the damages under both the Law Reform Act and the Fatal Accident Act. Reliance was placed on the case of Moses Mairua Muchiri vs. Cyrus Maina Macharia(Suing as the Personal Representative of the Estate of Mercy Nzula Maina( Deceased) Nyeri Civil Appeal No.138 of 2012 [2016] eKLR where court also adopted the decision in Kemfro Africa Ltd T/A Meru Express Services & Another vs. Lubia & Another [1982-88] 1 KLR 727.

32. As to whether the award of damages awarded was excessive, it is submitted that the deceased was aged 35 years, in good health with vigorous life and no anomalies which was cut short by the accident hence it was possible for him to have worked for another 25-30 years as casual labourer since he does not have a retirement age.

33. It is submitted that the Trial Magistrate is seen to have taken into account the vagaries of life and statutory deduction from the deceased’s income. The Respondents urge the court to dismiss the appeal in its entirety for lack of merit.DETERMINATION

34. I have considered the submissions and cases relied upon by parties herein.

35. This being a first appellate court, its role is well captured in the case of Selle vs. Associated Motor Boat Co [1986] EA 123 as follows:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 in particular the court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

36. In this appeal, the Appellants have challenged both liability and quantum of damages awarded by the Trial Magistrate. The issue for determination will therefore be whether the Respondents proved their case on a balance of probabilities against the Appellants.

37. It is trite that the legal burden of proof lies with the person who alleges. The Plaintiff(s) bear the legal burden of proof to prove the claim against the Defendant(s). Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

38. Once the Plaintiff(s) discharges the legal burden of proof, the burden is then shifted to the Defendant(s) to adduce evidence against the Plaintiff(s) claims. This burden is well captured under Sections 109 and 112 of the same Act as follows:Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

39. The above legal provisions are well captured in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 and Evans Nyakwana –vs- Cleophas Bwana Ongaro[2015] eKLR.

40. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:-“Denning J, in Miller vs. Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

41. According to Kimaru J. in William Kabogo Gitau vs. George Thuo & 2 Others[2010] 1 KLR 526 stated that:-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”LIABILITY

42. The Appellants assert that the Trial Magistrate should have apportioned equal liability between the driver and deceased. The Respondents support the 100% liability apportioned to the Defendants.

43. The court in Khambi & Another vs. Mahithi and Another [1968] EA 70, held that:“It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge”

44. In my view an analysis of PW3 and DW1 evidence leads me to a plausible conclusion that the driver of motor vehicle registration number KBS 338H was negligent. PW3 stated that the suit motor vehicle was being driven at a high speed and overtaking.DW1 confirmed that he was overtaking a trailer that obstructed his 360 view. DW1 confirmed that it was high great impact to the deceased. DW1 stated that it was high built up area with people. It was dark. According to DW in cross-examination, he did not apply an evasive action like hooting or applying the brakes. He saw the deceased a close range area.

45. I associate myself with the case of Masembe vs. Sugar Corporation and Another[2002] 2 EA 434, where court held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his court at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ....Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently...”

46. In the case of Isabella Wanjiru Karanja vs Washington Malele Nbi Civil appeal No 50 of 1981 [1983] eKLR Hon. Chesoni J. observed;“What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine when Washington had none and all things being equal she was under an obligation to keep greater lookout for other road users.”

47. The argument by the Appellants that the deceased was crossing at an undesignated area does not hold water. It was at night. The area was confirmed to have been a built area with people. PW3 evidence that the suit motor vehicle was at a high speed is uncontroverted. The driver of the suit motor vehicle ought to have ensured that the road was clear for him to overtake the trailer. I do not find any evidence from him that he checked if the road was clear. In cross-examination he stated that he was not sure that there was designated bridge.

48. It is trite that the pedestrian also has a duty of care towards other road users but there was plausible evidence before the court to conclude that the driver of the suit motor vehicle was negligent. I find that the Trial Magistrate did not err on liability against the Appellants. The judgment on liability is upheld.QUANTUM

49. The Appellants have urged this court to set aside and reduce the quantum of damages for being excessive and erroneously awarded.

50. The Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general 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 arrived at a figure which was either inordinately high or low...’

51. In the case of Southern Engineering Co. Ltd vs. Musungi Mutia [1985] KLR 730, the court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”Double compensation

52. The Appellants submitted that the award under the Law Reform Act should have been deducted from the award made under the Fatal Accident Act. Under the Law Reform Act, the Trial Magistrate awarded the deceased damages of Kshs. 30,000/- for pain and suffering and Kshs.120, 000/- for loss of expectation of life.

53. Was the award supposed to be deducted? I find the position has been settled by the Court of Appeal in Hellen Waruguru Waweru (Suing as the Legal representatives of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Ltd [2015] eKLR where the court noted the confusion in regard to the concept of double compensation put across by Kemfro Africa Limited case. The learned Judges expressed themselves as follows:-“21. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kemfro Africa Ltd t/a Meru Express Services 1976 & Another vs. Lubia & Another (No. 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that:

An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. 22. The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damage…. there is no compulsion in law to make the deduction.”

54. I am fortified by the decision of Majanja J. in Richard Matheka Musyoka & another vs. Susan Aoko & another (suing s the administrators ad litem of Joseph Onyango Owiti (Deceased) [2016] eKLR where the learned Judge guided by the Court of Appeal decision in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Limited(supra) held at paragraph 10 and 20 that:-“10. The principal does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act hence the issue of duplication does not arise regarding that aspect of the award.”

“20. This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.” See Meoli J. in Chen Wembo & 2 others vs. I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) (supra).

55. I find the Appellants argument is misconceived. The failure to deduct the award was not error in law. The ground fails.Loss of dependency

56. As regards the award of damages for loss of dependency, the Court of Appeal in J. Patel and Another vs. P. F. Hayes and Others [1957] EA 748, 749, stated the law on assessment of damages under the Fatal Accidents Act and held as follows:“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, 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 many years’ purchase. (Emphasis added)”

57. It therefore follows that the method to find loss of dependency is the multiplicand (annual net income) multiplied by a suitable multiplier (expected working life lost by the deceased by the premature death), and further by a dependency ratio (ratio of the deceased’s income utilized on her dependents).i.Proof of earnings

58. PW2 stated that the deceased earned Kshs.700/- per month as a professional driver. In the Plaint, I note that the Respondents pleaded that the deceased was a casual worker earning Kshs.25, 000/- per month. PW2 stated in his statement that the deceased was a professional driver. In cross-examination, PW2 stated that she did not have any documents to prove that the deceased was employed as a driver or earned Kshs.700/- per day.

59. In my view, although the Trial Magistrate was right to find that the deceased’s earnings were not proved, it does not mean that the deceased did not earn from driving since the failure to produce a copy of the driving license in court was not a conclusion that he was not a professional driver or earned an income as a driver. I note that the issue of the driving license was never cross-examined on by the Appellant’s advocate hence that evidence by PW 1 remained unchallenged. The issue cross-examined on was the deceased employment as a driver.

60. I associate myself with the Court of Appeal in Jacob Ayiga Maruja & Francis Karani vs. Simeon Obayo [2005] eKLR held that:-“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

61. It is trite that where there is no proof of earnings, the court should apply the minimum wage. In Frankline Kimathi Maariu & another vs. Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, it stated:“(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.”

62. In Philip Mutua vs. Veronicah Mule Mutiso [2013] eKLR it was held that where income is not proved, the income of an unskilled worker ought to apply.

63. According to the Appellants, the Trial Magistrate ought to have applied the minimum wage of Kshs. 10,107. 90 which after the statutory deductions remained at Kshs.9,507. 90/- and not Kshs.10, 000/- applied by the Trial Magistrate.

64. It is not in dispute that the accident occurred in 2015. According to the Chief’s letter the deceased was a residence of Wundanyi. The death certificate show that the deceased’s place of residence was at Mlolongo in Machakos.

65. The Regulation of Wages (General) (Amendment) Order, 2015 provides that a driver (cars and light vans) in “All other areas” earns Kshs.11, 279. 50 per month and driver (medium sized vehicles) earns Kshs.15, 293. 10 per month. I note that no evidence has been adduced in court on the type or vehicle the deceased was driving or the place employment.

66. On the other hand I note that the Trial Magistrate did not cite which law she had applied to come up with Kshs.15, 000/- but only stated that it was a reasonable income and upon being subjected to statutory deduction, the monthly income would be Kshs.10, 000/-.

67. Indeed, the court in D K M (Suing as Legal Representative to the Estate of J M M – Deceased) vs. Mehari K. Towolde [2018] eKLR stated that it cannot calculate the loss of dependency based on the total pay as the deductions do not necessarily go to the benefit of the dependants. In Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J. held that the important figure is the net earnings of the deceased. It therefore follows that statutory deduction were to be taken into account while adopting the multiplicand.

68. In arriving at Kshs. 10,000/- as a reasonable monthly income, the Trial Magistrate stated that she had taken into consideration the sum deducted by income tax and statutory taxes. I find no reason to interfere with the Trial Magistrate multiplicand of Kshs.10, 000/-.ii.Multiplier adopted

69. As regards the choice of multiplier, it is submitted that it should be reduced from 20 to 15. Reliance was placed on the case of Alex Koech & Another vs. Mary N. Odhiambo HCCA No. 42 of 2016 where 15 years was adopted where the deceased was aged 35 years. According to the Respondents the deceased was in good health with no ailments hence possible to have worked for another 25-30 years. According to the Respondents, the deceased didn’t have a retirement age.

70. I am fortified by Muriithi J. sentiments inCrown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] eKLR where the Learned Judge stated that:-‘23. The court does not accept the argument by the trial court and the respondent that as there was no evidence of ill health on the part of the deceased she must be taken to have been able to work upto the applicable retirement age and that therefore the multiplier is the function of a subtraction of the retirement age of the age for the deceased. Apart from ill health there are many vicissitudes that afflict the daily lives of humans as may well shorten the working life prescribed under private contract or statute regulations.…A court determination ought to be realistic and the court is better placed in justice to adopt a figure of the multiplier which is reasonable and in tune with realities of life.”

71. In Beatrice Wangui Thairu vs. Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), in which Ringera J. as he then was, held at page 248 that:“……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…”

72. However I note that the deceased was working in the private sector and having no ailments adduced in court, there is a possibility that he would have worked past the retirement age of 60 years. The deceased had three children as per PW1 evidence who were young hence a long dependency in the life time of the deceased. I find no reason to disturb the multiplier of 20 years adopted by the Trial Magistrate.

73. The dependency ratio of 2/3 has not been challenged. The court will not disturb the ratio.

74. Consequently, the appeal against the award for loss of dependency fails.DISPOSITIONa.The appeal is dismissed for lack of merit. The Trial Court Judgment in Mavoko PMCC No. 250 of 2016 is upheld.b.The Respondents will have the costs of the Appeal.Judgement accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15THDAY OF MARCH, 2022. M.W MUIGAIJUDGE