https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9113

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL DIVISION** **CIVIL APPEAL NO. E023 OF 2025** **PIUS MUSILI & GLADYS MBITHE JOHN (Suing as the Administrator of the Estate of MACDONALD MAITHYA JOHN……. APPLELLANT** **VERSUS** **ABUBAKAR ABAADI KHALIFA……...………….…1ST RESPONDENT** **BONIFACE MATHEKA MUNYOTO…...……….…2ND RESPONDENT** ***(Being an appeal from the ruling of Hon. Yusuf Shikanda PM dated 24th March, 2024 at the Magistrates Court at Makindu in Civil Case No. E001 of 2021)*** **JUDGMENT** 1. This appeal arises out of the decision of **Hon. Yusuf Shikanda Principal Magistrate**in Makindu Chief Magistrate’s Court Civil Suit No. E001 of 2021; where the Appellant sued the Respondents claiming general damages under the Fatal Accidents Act and Law Reform Act; Special damages in the sum of Kshs. 341,900/-, costs and interests of the suit and any other relief the court would deem fit to grant. 2. In the trial court, the Appellants via Plaint dated 4th January, 2021 averred that on or about 18th November, 2019, the deceased was lawfully travelling aboard motor vehicle registration number **KCB 724T** along Wote- Makindu road when at Itulu area , the Defendants either by themselves, duly appointed agents, driver and/or servants so negligently and carelessly managed, drove and/or controlled motor vehicle registration number **KCB 724T** that he permitted the same to lose control, veer off the road and caused an accident a result of which the deceased suffered fatal injuries. They blamed the accident of the Respondent’s negligence which they particularized at paragraph 4 of the plaint. They particularised loss and special damages at paragraph 5 of the plaint and prayed that judgement be entered in their favour as prayed. 3. By statement of defence dated 19th March, 2021, the Respondents herein denied the Plaintiff’s averments in their plaint and put them to strict proof thereof. They said that if at all the accident occurred, the same was caused solely or via contribution of the deceased’s negligence which they particularised at paragraph 5 of the statement of Defence. They denied the particulars of damages as averred by the plaint and prayed that the Plaintiff’s suit be dismissed with costs. 4. The Appellants filed a reply to Defence wherein they reiterated their averments in their plaint, denied the contents of the Respondent’s defence and prayed that judgement be entered in their favour as prayed. 5. The matter proceeded to full trial and the trial Magistrate considered the evidence tabled before him and entered judgement on liability in the ratio of 100% against the Respondents. He awarded a sum of Kshs. 70,000/- for pain and suffering, Kshs. 100,000 for loss of expectation of life and Kshs. 263, 900 in special damages making a total of Kshs. 433,900/-. The Hon. Magistrate dismissed the Appellants claim on loss of dependency arguing that the claim of loss of dependency was not proved. 6. The appellants dissatisfied with the trial court’s decision on quantum appealed against the same to this court. The appellants listed 4 grounds of appeal to wit: * 1. The trial Magistrate erred in law and fact by failing to make an award under the heading of loss of dependency. 2. The trial magistrate erred in law and fact by failing to consider the evidence tendered by the appellants on dependency. 3. The trial Magistrate erred in law and fact by considering irrelevant factors and consequently proceeding on the wrong principles of law. 4. The trial Magistrate erred in law and fact in failing to consider the Appellants evidence and submissions. 7. This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see **Selle v Associated Motor Boat Co**. [1968] EA 123). In **Kiruga v Kiruga & Another** [1988] KLR 348, the Court of Appeal observed that; ” An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 1. The Appellants prayed that the appeal be allowed and the court be pleased to make an award under the fatal accidents Act on the head of damages of loss of dependency, the costs of the trial court and of the appeal be awarded to the Appellant. **The evidence** 1. In the trial court, PW1 Pius Mulinge testified that the deceased was his brother’s son. He said that he had obtained letters of administration ad litem. He said that the deceased was a passenger in Motor vehicle registration in motor vehicle **KCB 724T** as per the police abstract. He prayed for compensation and said that the deceased was assisting him and his siblings. He stated that the deceased was a motor cycle repairer earning a sum of Kshs. 30,000/- per month. he reiterated that the deceased was assisting them at home. In cross examination, PW1 stated that the deceased was involved in a road accident. He said that he was informed of the accident and proceeded to the mortuary at Makindu Hospital where he confirmed that death. He said that the deceased was orphaned at a tender age and that he took over his guardianship together with that of his other siblings. He said that the deceased studied mechanics at Jitegemee college and was earning a sum of between Kshs. 30,000- 35,000/- out of which he could support PW1 and his siblings. He said that the deceased was the 2nd born. In re-examination, PW1 stated that the deceased had three siblings and that he died of a road accident. 2. PW2 No. 112590 PC Edwin Cheruiyot is based at Makindu police station performing traffic duties. He said that he had an abstract dated 23rd October, 2020 in respect of an accident that occurred on 18th October, 2019 along the Wote-Makindu road at Itulu area. He said that the accident was self-involving where Motor vehicle registration number **KCB 724T** Toyota Hiace where a passenger by name MCdonald was fatally injured. In cross examination, PW2 stated that he was not the investigations officer and neither did he visit the scene. He said that the Abstract was issued to the 1st Plaintiff and that it doesn’t indicate who was blamed for the accident. This marked the close of the Plaintiff/ Appellant’s case. The Defendants /Respondents closed their case without calling any witness. The parties consequently filed their submissions which the court considered and awarded the impugned judgement herein **Analysis and determination**. 1. The appeal was disposed of by way of written submissions which I have read and considered. The main issues for determination are; 1. Whether the learned Magistrate erred in law and fact by failing to award loss of dependency. 2. Whether the Appellants are entitled to compensation for loss of dependency under the fatal Accidents Act. 2. The trial Magistrate found that the Appellant herein failed to prove loss of dependency. He relied on Section 4 (1) of the [Fatal Accident Act](https://kenyalaw.org/akn/ke/act/1946/7) which provides that: ‘‘Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think, proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.’’ 1. PW1 testified that the deceased and his siblings were orphaned at a tender age and that he took over their guardianship. He stated that the deceased was a second born among his siblings and that he was a trained mechanic earning a monthly income of between 30,000 – 35,000/- out of which amount he assisted PW1 and his siblings. 2. I have perused the trial court file and note that the chief Kyua location via letter dated 30th October, 2020 stated that the deceased hailed from his location and that he has three siblings among them a minor aged 13 years. The chief further stated that the deceased was orphaned at a young age and that PW1 who was their uncle took over their guardianship. The other two sisters are said to be holders of Kenya national identity cards hence presumed to be of the age of majority but then the exact ages are not disclosed. The court was informed that the deceased was the 2nd born amongst his siblings and aged 21 years old. The court is therefore left to speculate on the age of the other two siblings whose ages are not disclosed yet speculation is not and cannot be a source of evidence. What is clear to this court is that two of the deceased’s siblings are younger than him and that PW1 had taken over guardianship of the deceased and his siblings after the death of their parents. 3. The court relied on **Beatrice Wangui Thairu Vs. Hon. Ezekiel Barng’etuny &Another** (Nairobi HCC NO. 1438 of 1998 (unreported) as applied in **Rev. Fr. Leonard O Ekisa & another Vs. Major Birgen** [2005] eKLR where Ringera J held that; ***The extent of dependency is a question of fact to be established in each case”*** 1. In his judgement, the trial magistrate held and found that; “there is no evidence to show that the deceased’s Uncle and particularly his siblings depended on him particularly those who were adults” 1. PWI testified that he, as a guardian who had taken care of the deceased from the time he was orphaned and his siblings depended on the deceased and that the deceased would buy food and support his siblings. PW1 was cross examined but not on dependency. Besides, the Defendants/Respondents never adduced evidence to the contrary on the issue of dependency. The Plaintiffs/Appellants’ evidence on dependency is therefore uncontroverted. 2. In **Acceler Global Logistics v Gladys Nasambu Waswa & another** [2020] eKLR, the court held that; “An assessment of probabilities is not possible without analysing the facts of the case which are contained in oral and documentary evidence. A court of law can only weigh up the proved facts without concerning itself with speculating on evidence that was never adduced, or which does not follow by reasonable inference from the proved facts” 1. In the **Acceler Global Logistics v Gladys Nasambu Waswa & another** case (supra) the court relied on the findings of Lord Wright in **Caswell v Powell Duffryn Associated Collieries Ltd** [{1939} 3 All ER 722](http://www.saflii.org/cgi-bin/LawCite?cit=%5b1939%5d%203%20All%20ER%20722) (HL) at 733 where the court had found that “There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." 1. I have considered the evidence tendered by PW1 and the documentary evidence tendered by the chief whereupon he introduces PW1 as the deceased’s guardian who took care of him since he was orphaned. The court was also informed that the deceased was the 2nd born among his siblings and that he assisted PW1 in supporting his siblings and buying food. This evidence was not controverted either in cross examination or by defence evidence. I therefore find that the court erred in finding that no evidence on dependency had been proved and that the court’s attempt to establish dependency outside the evidence tendered, amounts to speculation and/or conjecture. 2. Having found that the Appellants proved dependency, I will proceed to assess damages for loss of dependency. The applicable principles used to calculate the loss of dependency are: - * 1. Multiplicand –These depends, under Fatal Accident Act on the income of deceased prior to death 2. Multiplier –These depends on the age of deceased and the number of years lost. 3. Dependency Ratio-This depends on ratio of support given to dependants. 3. In the instant case, the court was informed that the deceased was 21 year- old mechanic who used to repair motorcycles and could earn a sum of between Kshs 30,000-35,000/- per month. The said income was not proved by any documentary evidence. 4. Mabeya J in [***Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri***](https://kenyalaw.org/akn/ke/judgment/kehc/2007/1358)**[2020] eKLR**while considering a situation where proof of income was not presented to court held that;‘‘ All that documentary evidence does is to give the Court an estimation of the actual income a person derives from his economic activities. Where there is no such documentary evidence, the Court should then resort to the principle of lump sum. 5. Koome J (as she then was) in [***Albert Odawa versus Gichimu******Githenji***](https://kenyalaw.org/akn/ke/judgment/kehc/2007/1358)**[2007] eKLR,** quoted Ringera J in ***Mwanzia versus Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another*** wherein he stated: - ‘The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 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 ……. because of the inexactitude in ascertaining the income of the deceased, the trial Court was right in resorting to the lump sum principle. However, in resorting to the lump sum principle, a trial Court should be guided by the age of a deceased, the expected length of dependency and the estimated income. The award should not be so inordinately high or low as to be a wrong estimate of damages.’’ 1. The same principle was adopted in [***Mary Khayesi Awalo & Another versus Mwilu Malungu & Another***](https://kenyalaw.org/akn/ke/judgment/kehc/1999/44)**ELD HCCC No. 19 of 1997 [1999] eKLR where Nambuye J.,** (as then was) stated that: - ‘‘As regards the income of the deceased there are no bank statements showing his earnings. Both counsels(*sic*) have made an estimate of the same using no figures. In the court’s opinion that will be mere conjencture. 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. In the instance suit, the deceased was a 21 year -old orphan survived by his three siblings one of whom is aged 13 years old. In **Chege & another v Gathiru & another** [2026] the court awarded a sum of Kshs. 2,100,000/- for loss of dependency. This being a relatively recent decision, and guided by it, I hereby quash the order of the court dismissing the Appellant’s claim on loss of dependency, and substitute it with an award of Kshs. 2,100,000/- in lost dependency. 2. Since the instant appeal is based on the claim for loss of dependency, I will allow the same. I consequently set aside the Trial Court’s judgement on loss of dependency and enter judgement as follows: 3. Liability 100% in favour of the Plaintiff 4. Pain and suffering Kshs. 70,000/- 5. Loss of expectation of life Kshs. 100,000/- 6. Loss of dependency Kshs. 2,100,000/- 7. Special damages Kshs. 263, 900/- **Total Kshs. 2,533,900/-** 1. On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal. 2. It is so ordered. Dated, signed and delivered this 26th day of June, 2026 **………………….….** **ROSELINE A. OGANYO** **JUDGE** **In the presence of: -** Court Assistant…E, Sana. Counsel for the Appellants…. Mr. Muasya Counsel for the Respondent…. Mr. Kabita for 2nd Respondent Mr. Kabita-I seek 30 days stay of execution Mr. Muasya-No objection **Order.** There be stay of execution for 30 days. **………………….….** **ROSELINE A. OGANYO** **JUDGE**