https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8296

Mayaka v Orondo & another (Suing as the Administrators & Personal Representatives of the Estate of George Yalo Madar - Deceased) (Civil Appeal E077 of 2024) [2026] KEHC 8296 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 8296 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E077 of 2024 JM Omido, J June 4, 2026 Between Silvia Mayaka Appellant and Judith Atieno Orondo 1st Respondent Emmanuel Odhiambo Atieno 2nd Respondent Suing as the Administrators & Personal Representatives of the Estate of George Yalo Madar - Deceased (Being an Appeal from the Judgement and Decree of Hon. R.M. Oanda Senior Principal Magistrate delivered on 18th March, 2024 in Winam SPMCC No. E075 of 2021.) Judgment A. Background. 1.This appeal emanates from the judgement and decree Hon. R.M. Oanda, Senior Principal Magistrate delivered on 18th March, 2024 in Winam SPMCC No. E075 of 2021. 2.This appeal is concerned exclusively with the assessment and determination of the damages. The issue of liability was conclusively resolved by the parties before the trial court through a consent recorded on 30th November, 2022, in which they mutually agreed to apportion liability in the ratio of 70%:30% in favour of the Respondents. 3.The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 4th April, 2024, in seeking to set aside the judgement and decree of the trial court with respect to the award on quantum:i.That the learned trial Magistrate erred in law when he applied as the multiplicand (income) the sum of Ksh.17,561/- , being the minimum wage of a driver under the Regulation of Wages (General) (Amendment) Order, 2018, while there was no evidence that the deceased was a driver.ii.The learned trial Magistrate erred in law by failing to apply as the multiplicand (income) the sum of Ksh.7,204,95/-, being the minimum wage of a general worker in a rural set up as per the Regulation of Wages (General) (Amendment) Order, 2018.iii.The learned trial Magistrate ignored and/or paid lip service to the Appellant’s submissions and especially the precedents cited therein which he did not analyze or consider at all.iv.The learned trial Magistrate failed to take into account all relevant considerations and principles in assessing the quantum of damages. 4.The Appellant proposes that the appeal be allowed, that the trial court’s finding and/or assessment on the quantum of damages, particularly on the head of loss of dependency be set aside, this court proceeds to make its own assessment and that the costs of the appeal be awarded to the Appellant. 5.As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. I will, however, confine my consideration to the evidence relevant to the issue of quantum of damages. 6.In Selle, Sir Clement De Lestang observed that:“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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.” 7.The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” B. The Pleadings Before The Trial Court. 8.The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 17th June, 2018, 2023 in which the Deceased, George Yalo Madar sustained fatal bodily injuries. 9.The Respondents sued the Appellant vide the plaint dated 15th June, 2021 seeking to recover general damages under the Fatal Accidents Act and the Law Reform Act, costs of the suit and interest, claiming that the accident occurred due to the negligence of the Appellant and/or her servant, employee and/or agent. 10.The Respondents pleaded listed the following as being dependants of the deceased pursuant to the Fatal Accidents Act:a.Judith Atieno Orondo – wife – 37 years.b.Sharon Anyango Yalo – daughter – 19 years.c.Alex Faraji Yalo – son – 12 years.d.Michael Juma Yalo – son – 10 years.e.Emmanuel Odhiambo Atieno – brother – 24 years. 11.The Appellant resisted the claim and, in that regard, filed a statement of defence dated 20th July, 2021 in which she generally denied the Respondents’ claim. C. The Evidence Before The Trial Court. 12.The evidence relevant to this appeal, particularly in relation to the award of general damages under the head of loss of dependency, is that the 1st Respondent testified before the trial court that the deceased was her husband. She stated that he died at the Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) on 17th June 2018, at the age of 35 years, following injuries sustained in a road traffic accident that occurred on the same day. 13.She further testified that prior to his death, the deceased worked as a boda boda operator and earned an estimated daily income ranging between Ksh.1,000/- and Ksh.1,500/-. According to her, the deceased used this income to provide for her and their three children, including meeting their basic needs such as food and school fees. 14.The 1st Respondent also stated that she had three children with the deceased, namely Sharon Anyango, aged 19 years, Alex Faraji, aged 16 years and Michael Juma, aged 11 years. She produced birth certificates for the children as well as a letter from the local chief confirming their relationship to the deceased and the deceased’s certificate of death, among other documents. 15.During cross-examination, the 1st Respondent reiterated that the deceased was engaged in boda boda business and claimed to know his employer. However, she conceded that she did not have any documentary evidence to prove his employment or to substantiate the alleged daily income. 16.The Appellant did not call any witness. D. The Trial Court’s Findings. 17.In assessing the quantum of damages under the head of loss of dependency, the learned trial Magistrate rendered himself as follows in his judgement:“(a).Multiplicand/IncomeThe deceased is said to have been a boda boda rider whose income is said to be Ksh.1,000/- per day. As per the death certificate, he died at 35 years and given the nature of his work and the current economic situation and uncertainties of life, he was expected to have worked up to 55 years of age. For failure to prove the income, and given that the deceased was a boda boda rider and indeed he met his death on the road, I will work with the proposed figure of Ksh.17,561/-. This is in line with the Regulation of Wages Order, 2018.(b).Dependency ratioThe deceased left behind three children ad the widow. A dependency ratio of 2/3 is thus suitable.(c).MultiplierThe deceased died at the age of 35 years. Given the nature of work that the deceased was engaged in, he is expected to have satisfactorily worked up to the age of 55. With the unexpected life uncertainties, I would adopt a multiplier of 20 years.Under loss of dependency, the award will be as follows:Ksh.17,561 x 12 x 20 x 2/3 = Ksh.2,809,760/-.” 18.It is this award made by the trial court that the Appellant is now dissatisfied with and consequently challenges through the present appeal. E. The Appellant’s Submissions. 19.In her submissions, the Appellant proffers the position that the trial court erred in its assessment of damages under the head of loss of dependency, particularly in its determination of the appropriate multiplicand for purposes of calculating the award. 20.It is the Appellant’s contention that although liability had been settled by consent, the issue of quantum remained contested, with the central dispute being the deceased’s occupation and the income that should properly have been applied in the computation of damages. 21.The Appellant submits that the evidence on record did not establish that the deceased was a qualified or licensed driver/rider so as to justify the application of the minimum wage for a driver under the Regulation of Wages (General) (Amendment) Order, 2018. It is argued that no documentary proof such as a driving licence, employment records or proof of ownership or operation of a motorcycle was produced. 22.According to the Appellant, in the absence of credible proof of income or occupation, the trial court ought to have resorted to the minimum wage applicable to a general worker in a rural setting, being the category most consistent with the evidence that the deceased resided and worked in Nyahera. 23.The Appellant further takes issue with the trial court’s adoption of a multiplicand of Ksh.17,561/-, contending that this figure applies to drivers and other specified categories of workers in urban municipalities such as Kisumu, Nairobi and Mombasa, and was therefore inapplicable to the circumstances of the deceased. PARA 24.It is also the Appellant’s complaint that the trial court failed to give reasons for rejecting the Appellant’s proposed multiplicand and for instead adopting the Respondent’s suggested figure, thereby failing to comply with the requirement for reasoned decision-making under Order 21 Rule 4 of the Civil Procedure Rules. 25.The Appellant therefore submits that the trial court misdirected itself in principle and in law, and urges that the appropriate multiplicand ought to have been either Ksh.7,240.95/-, representing a general worker in “all other areas,” or, in the alternative, Ksh.13,431.00/- if the Court were to find that the deceased was engaged in driving-related work in a rural setting. F. The Respondents’ Submissions. 26.On their part, the Respondents submit that the trial court properly assessed and applied the law in arriving at the award for loss of dependency. They contend that the deceased died at the age of 35 years as evidenced by the death certificate and that, based on the statutory retirement age of 60 years, he would have been expected to work for a further period of approximately 25 years. 27.The Respondents assert that the learned trial Magistrate took into account the vagaries and uncertainties of life, and the trial court’s adoption of a multiplier of 20 years was, in their view, reasonable and consistent with judicial precedent, including Joseph Kahiga Gathii & Paul Mathaiya Kahiga v World Vision Kenya & 2 others [2014] eKLR. 28.On the issue of the multiplicand, the Respondents submit that the deceased was engaged as a motorcyclist (boda boda operator) within Kisumu Town and earned a daily income estimated between Ksh.1,000/- and Ksh.1,500/-. They argue that employment in the informal sector does not lend itself to strict documentary proof of income and that the trial court was therefore justified in relying on oral testimony. 29.The Respondents further rely on the testimony of PW1, who indicated that the deceased and his family resided in Nyahera and that the deceased operated along the Kisumu–Busia Road area, which, according to them, supports the inference that he worked within Kisumu Town and its environs. 30.The Respondents submit that under the Regulation of Wages (General) (Amendment) Order, 2018, the appropriate minimum wage applicable is that of Ksh.17,561/- for categories such as machinists, motor vehicle repairers, laundry operators and light tractor drivers within Kisumu and other cities. They contend that it would be erroneous to apply the wage structure for “other areas” when Kisumu is a designated urban area with a higher wage bracket. 31.In support of this position, they rely on Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] KEHC 6932 (KLR), where the Court recognised that in cases involving boda boda riders, courts may appropriately adopt minimum wage guidelines for comparable skilled or semi-skilled categories in the absence of precise proof of income, and that urban wage categories may apply depending on the circumstances. 32.The Respondents therefore urge the Court to uphold the multiplicand of Ksh.17,561/- as adopted by the trial court, submitting that it is reasonable, properly grounded in the applicable wage order and reflective of the deceased’s occupation. 33.On dependency, the Respondents submit that the deceased was survived by his wife (the 1st Respondent), three children aged 19, 16 and 11 years respectively, as well as his brother (the 2nd Respondent). They contend that the deceased was the sole breadwinner and that the family wholly depended on him for their maintenance, including food, shelter, clothing and education. They therefore submit that a dependency ratio of 2/3 is appropriate and consistent with established practice in fatal accident claims. 34.On that basis, they support the trial court’s computation of loss of dependency using the formula: Ksh.17,561/- × 12 × 20 × 2/3, resulting in Ksh.2,809,760/-. 35.In conclusion, the Respondents pray that the award of the trial court be upheld in its entirety and that they be awarded costs of this appeal. G. Issues For Determination. 36.Having considered the grounds of appeal, the record of the trial court and the rival submissions by the parties, the issues that arise for determination in this appeal are as follows:a.Whether the learned trial Magistrate erred in law and in principle in adopting a multiplicand of Ksh.17,561/- under the Regulation of Wages (General) (Amendment) Order, 2018 for purposes of assessing loss of dependency, and whether there was sufficient evidential basis for the finding on the deceased’s occupation and income.b.Whether the learned trial Magistrate properly applied the law and judicial principles in adopting a multiplier of 20 years and a dependency ratio of 2/3 in computing the award for loss of dependency.c.Whether the trial court complied with the requirement for reasoned decision-making under Order 21 Rule 4 of the Civil Procedure Rules in its assessment of quantum, and if not, what effect, if any, such non-compliance has on the impugned award. H. Analysis And Findings. 37.From the material before me, it is clear that the central issue in this appeal concerns the proper assessment of damages under the head of loss of dependency, particularly the correctness of the multiplier-multiplicand approach adopted by the trial court. It is not in dispute that liability had already been settled by consent in the ratio of 70:30 in favour of the Respondents, and therefore the appeal turns solely on quantum. 38.It is evident from the record that no documentary or credible evidential basis was laid to establish the deceased’s actual income or formal employment. The evidence presented merely indicated that the deceased was a boda boda operator, allegedly earning between Ksh.1,000/- and Ksh.1,500/- per day, but this assertion was not supported by any records, licence, employment documentation or verifiable proof of earnings. 39.Where income is not proved, the multiplier-multiplicand approach becomes speculative and a global award is more appropriate. The multiplier approach is not appropriate where earnings are not proved and a global sum is more realistic. 40.The Court of Appeal reiterated this principle in the case of Catholic Diocese of Kisii v Sophia Achieng Tete [2004] eKLR, where it held that:“Where there is no evidence of income, the court should not engage in conjecture but should instead make a global award based on the circumstances of the case.” 41.In the case of Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa) Ltd (HCCC No. 26 of 1998) the court stated:“The multiplier approach is not appropriate where earnings are not proved and a global sum is more realistic.” 42.In Nyamu & another v Aloo & another (Suing as Legal Representatives and Administrators of the Estate of Walter Onyango Oloo (Deceased)) [2022] eKLR, I considered the propriety of the multiplier-multiplicand approach in circumstances where the deceased’s income was not strictly proved and held that the method is merely a tool used in the assessment of damages, which does not constitute a binding rule of law or an inflexible doctrine and that accordingly, it may, and indeed should be departed from, where the circumstances of the case render its application impractical or inappropriate. 43.I further held that where the evidential basis for determining income is uncertain or speculative, the global award method becomes the more appropriate and just approach in assessing loss of dependency. 44.In the present case, the trial court nevertheless proceeded to apply the multiplier-multiplicand approach and adopted a monthly income derived from the Regulation of Wages (General) (Amendment) Order, 2018, pegged at Ksh.17,561/-. 45.However, this figure was not anchored on proved income or occupation. The deceased’s earnings remained unknown, and the informal nature of boda boda operations further rendered the application of a strict wage category uncertain and speculative. 46.In Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, the Court of Appeal warned against awards based on “assumptions not supported by evidence,” emphasizing that damages must be founded on reasonable evidential basis. 47.In light of the foregoing, this Court finds that the trial court erred in principle in applying the multiplier-multiplicand method in circumstances where both the income and the precise nature of employment were not satisfactorily proved. The proper approach would have been to award a global sum to fairly compensate the dependants for their loss. 48.Turning to the question of the appropriate quantum under the head of loss of dependency, it is noted that the deceased was 35 years of age at the time of his death, and was survived by a wife and three children. The evidence on record clearly demonstrates that the deceased played a central role in the upkeep of his family, and importantly, this evidence was not meaningfully controverted by the Appellant. 49.It is further evident that the deceased was engaged in the boda boda transport business, which is part of the informal sector where earnings are typically unstructured, variable and not supported by formal documentation. 50.This Court takes judicial notice of the fact that such occupations are heavily dependent on daily customer flow, operating conditions, fuel costs and other fluctuating economic factors, all of which make precise proof of income inherently difficult. 51.In such circumstances, and particularly where the evidential basis for the application of the multiplier–multiplicand approach is weak or speculative, and a more pragmatic and just method of assessment is the global sum method, as it better reflects the realities of dependency without resorting to conjecture. The guiding principle remains that damages in fatal accident claims are meant to place dependants, so far as money can do so, in the position they would likely have been had the deceased not died, but without engaging in artificial precision. 52.Taking into account the deceased’s age, his earning capacity as a boda boda operator, the number of dependants and the uncertainties inherent in informal employment, this Court is persuaded that a global award is the most appropriate approach in the circumstances of this case. In that regard, I find that a sum of Ksh.2,000,000/- represents a fair, reasonable and proportionate award for loss of dependency. 53.Accordingly, the appeal succeeds on quantum. The award of the trial court under the head of loss of dependency is hereby set aside and substituted with a global award of Ksh.2,000,000/-. The sums awarded under the Law Reform Act are upheld as assessed by the trial court. The net effect shall be recalculated accordingly, with liability remaining at 70:30 as previously agreed by consent. 54.Costs of the appeal are awarded to the Appellant, which I assess at Ksh.25,000/-. 55.This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 4TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGEFor Appellant: No Appearance.For Respondent: Mr. Ochuka.Court Assistants: Mr. Ngoge & Mr. Juma.