https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9638

Paul & another v Cherono & another (Suing as the Legal Representatives & Administrators of the Estate of Wilson Kipkosgei Maiyo - Deceased) (Civil Appeal E146 of 2025) [2026] KEHC 9638 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9638 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E146 of 2025 JRA Wananda, J July 3, 2026 Between Kimari John Paul 1st Appellant Charles Boko Wambua 2nd Appellant and Pamela Cherono 1st Respondent Ruth Jelagat 2nd Respondent Suing as the Legal Representatives & Administrators of the Estate of Wilson Kipkosgei Maiyo - Deceased (Appeal from the Judgment dated 4/07/2021 delivered in Eldoret Chief Magistrates Court Civil Case No. 734 of 2021 by Hon. Kimani Mukabi - PM) Judgment 1.This Appeal arises from the Judgment delivered in the said Magistrate’s Court suit in which the Respondents (as the Plaintiffs) instituted a claim on behalf of the estate of the 48 years old deceased, said to be the husband to both the Respondents, against the Appellants. The claim was for compensation for the death of the deceased, which occurred as a result of a fatal road accident. Judgment was then entered in favour of the Respondents and the Appeal is premised as being against the trial Court’s decision on quantum. 2.Liability was agreed upon at the trial Court by consent, at 90:10 in favour of the Respondents, and damages was then assessed by the trial Court, and awarded to the Respondents, plus costs and interest. The breakdown of the Judgment was therefore in the following terms: Liability at 90:10 in favour of the Respondents (Plaintiffs) Pain and suffering Kshs 100,000/- Loss of expectation of life Kshs 100,000/- Loss of dependency Kshs 2,000,000/- Sub-total Kshs 2,200,000/- Less 10% contribution Kshs 220,000/- Total Kshs 1,980,000/- Special damages Kshs 204,421/- Gross Total Kshs 2,184,421/- 3.The suit was commenced by way of the Plaint dated 1/09/2021 filed through Messrs Kigen & Co., in which the Respondents pleaded that on 10/05/2021, the deceased was driving the motor vehicle registration number KBH 933R along the Eldoret-Kitale Road when the Appellants’ driver negligently or carelessly managed the Appellants’ motor vehicle registration number KCJ 070A causing it to knock the motor vehicle driven by the deceased, who, as a result, suffered fatal injuries. It was pleaded further that the deceased left behind a widow and 4 children, and that, at the time of his death, he was 30 years old, a businessman and a farmer. The Respondents therefore sought general damages, and also special damages for a sum of Kshs 254,871/- in terms of incurred funeral expenses, hospital and mortuary charges, legal fees, and motor vehicle search fees. 4.As aforesaid however, it turned out that the deceased was in fact 48 years old, not 30 years, and also that, apart from children, he left behind the 2 Respondents as widows, not 1 widow. 5.In the joint Statement of Defence dated 19/10/2021, 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. 6.The matter then proceeded for trial in which the Respondents (as Plaintiffs) called 1 witness (PW1), while the Appellants did not call any. It is at the end of PW1’s testimony that the parties recorded the consent on liability at 90:10 as aforesaid, and the trial Court then assessed and awarded damages. Dissatisfied with the quantum awarded, the Appellants filed this appeal by way of the Memorandum dated 14/07/2025, premised on the following 6 grounds:i.That the Learned Magistrate erred in law and fact by failing to use the multiplier approach in assessing damages under loss of dependency, which approach was proposed by both parties and in line with the evidence on record.ii.That the Learned Magistrate erred in law and fact by adopting a global award under loss of dependency without any basis instead of calculating the same using the applicable basic minimum wage and a reasonable multiplier and dependency ratio.iii.That the Learned Magistrate erred in law and fact in arriving at a decision contrary to the principle of stare decisis in awarding a global sum of Kshs. 2,000,000/= for loss of dependency by failing to provide a basis and/or justification for his award through quotation of a relevant legal precedent citing similar awards in cases of similar natureiv.That the Learned Magistrate erred in law and fact by arriving at an erroneous estimate of the award under loss of dependency suffered by the estate of the deceasedv.That the Learned Magistrate erred in law and fact in awarding a large Sum under loss of dependency which are punitive, excessive and/or inordinately high in the circumstances thus occasioning a miscarriage of justice.vi.That the Learned Magistrate erred in law and fact in awarding special damages that were not proved in line with the principles of law. 7.As aforesaid, it is clear that the Appeal is only in respect to quantum, and specifically on assessment of “loss of dependency” and award of special damages. 8.In her testimony, in respect to quantum, PW1, the 1st Respondent (1st Plaintiff), produced, among others, copies of the Post-Mortem Report relating to the deceased, burial permit, Certificate of Death, Letters of Administration Ad Litem, demand letters, introduction letter from the Chief, and various payment receipts. She reiterated that the deceased was a farmer and used to earn a monthly income of between Kshs 20,000/- and Kshs 30,000/-, which he used to maintain the family. In cross-examination, she however conceded that she had no proof of such earnings, and also stated that she could not recall the amount incurred in the funeral. 9.I then gave the parties leave to file written Submissions. Pursuant thereto, the Appellants filed the Submissions dated 11/11/2025, while the Respondents’ is dated 11/02/2026. Appellant’s Submissions 10.Counsel for 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 method in this case as the 1st Respondent testified that she had no proof of earnings. He submitted that the deceased having died on 14/05/2021, the applicable guide should have been the Regulation of Wages (General Amendment) Order, 2018. 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 Turbo, he fell under the “all other areas” column appearing in the Regulations, in respect to which the minimum wage stipulated is Kshs 7,240.95. He proposed a multiplier of 8-10 years considering that the deceased died at the age of 48 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, as the Respondents did not produce any form of evidence such as a Certificate of Marriage or Certificates of Birth for the alleged children. He also pointed out that the 1st Respondent, testified that she was a businesswoman and she, too, therefore, used to support the family. According to Counsel therefore, the deceased was not the sole breadwinner of his family, and he proposed a “dependency ratio” of 1/3. His final total Judgment amount proposal was therefore for a sum of Kshs 434,457/- computed as Kshs 7,240.95 x 12 months x 22 years x ½, based on the following parameters: Multiplicand (monthly earning) Earning years (multiplier) Dependency ratio 7,240.95 10 ½ 11.In respect to special damages, Counsel acknowledged that the Respondents sought an amount of Kshs 254,871/-, while the trial Court awarded the lesser sum of Kshs 204,421/-. He however observed that the trial Court did not determine whether the Respondents proved such special damages, and contended that the Appellants only proved an amount of Kshs 189,720/-. Respondent’s Submissions 12.Counsel for the Respondent, Mr. Osewe Atieno, on his part, contended that the Court is not bound by any law to adopt the “multiplier” approach in assessing damages under “loss of dependency”, and that where the facts do not allow, the Court is at liberty to adopt the “global sum” approach. He thus asserted that the trial Magistrate properly exercised his discretion, and also pointed out that the Magistrate, in arriving at the decision not to adopt the “multiplier” approach, gave his reasons for not doing so. He submitted that in any event, the Appellants failed to demonstrate that the trial Court arrived at a wrong principle or fact in adopting the “global sum” approach. Regarding the award of Kshs 2,000,000/- for “loss of dependency” Counsel submitted that the trial Court took into account all the relevant factors, including inflation, comparable previous Court awards, and circumstances of the deceased, among others. He also asserted that the Respondents, through testimony and also by the Chief’s letter, proved that the deceased left behind dependents. He therefore defended the award which, he submitted, the Appellant did not demonstrate as being excessive or inordinately high. In respect to special damages, he observed that while the Respondents had, in the Plaint, sought am amount of Kshs 254,871/-, what was awarded was the lesser sum of Kshs 204,421/-. He submitted that the special damages awarded was therefore pleaded and proved, and that the only error committed by the trial Court was its failure to award funeral expenses. Determination 13.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. 14.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”. 15.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) 16.The above principle was reiterated by Kneller J.A. in the 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. 17.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. 18.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.” 19.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.” 20.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”. 21.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. 22.For instance, Njagi J, in Kakamega H.C.C.A. 10/2017Chitabhadhiya 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” 23.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 ...............” 24.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. 25.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 only 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. 26.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 as “multiplicand”, the “minimum wage” stipulated by law in respect to the occupation in which the deceased was engaged in. 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. 27.In this case, the trial Court awarded a “global award” sum of Kshs 2,000,000/-. I have looked at comparable case law and/or authorities in cases in which Courts have given awards for “loss of dependency” in instances where the deceased possessed similar attributes to the deceased in this instant case, including the age, and found that the amount of Kshs 2,000,000/- awarded by the trial Court in this case is not too far off from what Courts have generally been awarding. The family having lost a father and husband aged 48 years old, I also honestly do not believe that compensation of an amount of Kshs 2,500,000/- for the loss of a human being can be described as too high to amount to an error in principle. The aggregate amount of Kshs 434,457/- proposed by the Appellant as full compensation for the death is clearly inordinately too low. 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. 28.In declining to interfere, I associate myself fully with the view adopted by P.J. Otieno J in the case of 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. I 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.” 29.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 and gave its reasons for doing so. Since that was a choice that fell within 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. 30.In light of the foregoing, I decline to interfere with or disturb the trial Court’s assessment of damages for “loss of dependency”. 31.Regarding special damages, it is true that the trial Magistrate did not make any finding or determination thereon but, in the end, awarded a sum of Kshs 204,421/- under that head. I have perused the receipts produced and I agree with the Appellant’s observation that they only added up to a sum of about Kshs 189,720/-. The difference of Kshs 14,701/- awarded is therefore unexplained. I however note that the Respondents had also pleaded funeral expenses at Kshs 50,000/-. That amount, being a reasonable figure, in fact much less, for costs incurred in a funeral, it ought to have been awarded. There being no cross-appeal however, I will not award it but I will deem that difference of Kshs 14,701/- to constitute a part of the funeral expenses pleaded. This is so because it is now generally agreed that funeral expenses are a special nature of damages that once pleaded, need not be strictly proven in the usual manner expected for ordinary special damages. This is because by its nature, and considering the solemnity of the moment, expenses incurred by a bereaved family in connection to, at, or during the funeral, cannot be reasonably always expected to be accurately documented. For this understanding, I cite the Court of Appeal case of Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR in which the following was stated:“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The Learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased - testified that they spent much more that this in preparing for and conducting a cremation the Learned Judge awarded a sum of Kshs 150,000/= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.” 32.The above principle was upheld in the subsequent Court of Appeal case of Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR. 33.In view thereof, while I agree that special damages must be pleaded and proved, a perusal of the above authorities reveals that where funeral expenses are pleaded, they may still be awarded even though no receipts have been produced to support such expenses. In the circumstances, despite the failure to produce receipts totalling the pleaded funeral expenses of Kshs 50,000/-, there really is no dispute that indeed there was a funeral following the deceased’s death. This is evidenced by the copy of the burial permit on record. The Respondents were therefore entitled to a reasonable award in funeral expenses, part of which, as aforesaid, I deem to have constituted the unexplained portion of Kshs 14,701/- awarded as part of the special damages. I shall therefore not disturb nor interfere with the award. Final Orders 34.In the end, this Appeal fails, and is accordingly dismissed with costs to the Respondents. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026…………………...……..WANANDA JOHN R ANUROJUDGEDelivered in the presence of:Ms. Muresia for the AppellantsMs. Kigen for the RespondentsCourt Assistant: Brian Kimathi