Violet Asigo Magovi (Suing as the personal representative and legal administrator of the Estate of Brian Madaga Deceased) v David M. Kamsa

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E035 OF 2024** **VIOLET ASIGO MAGOVI** *(Suing as the personal representative and legal administrator of the Estate of* ***BRIAN MADAGA DECEASED)………………………………………………………………...*APPELLANT** **-VERSUS-** **DAVID M. KAMSA………………………………………………………RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. J. A. Agonda (PM) delivered on 23rd July 2024 in Vihiga PMCC No. 190 of 2021)* **CORAM: Before Hon. Justice R. Nyakundi** **M/S Staussi, Asunah & Oluoch Advocates** **M/S L. G. Menezes & Co. Advocates** **JUDGMENT** # Introduction and background # This is a first appeal arising from the Judgment and Decree of the Honourable J. A. Agonda, Principal Magistrate, delivered on 23rd July 2024 in Vihiga Principal Magistrate's Court Civil Case No. 190 of 2021. 1. By a Plaint dated 4th November 2021, the Appellant, Violet Asigo Magovi, sued the Respondent, David M. Kamsa, in her capacity as the mother of the deceased and as the personal representative and legal administrator of the Estate of Brian Madaga (Deceased). She sought general and special damages under the Fatal Accidents Act, Cap 32 and the Law Reform Act, Cap 26, for the benefit of the deceased's dependants and his estate. 2. The Appellant's case was that in May 2021, along the Kidundu–Wamuluma road, the deceased was lawfully riding motorcycle registration number KMFE 675P when the Respondent, driving motor vehicle registration number KBU 148K (Mitsubishi FH Lorry), so negligently drove, managed or controlled the said lorry that he caused it to collide with the deceased's motorcycle, occasioning him fatal injuries. The particulars of negligence attributed to the Respondent, his driver, agent, servant and/or employee were pleaded at paragraph 5 of the Plaint. *(I note in passing that the Appellant's written submissions place the accident on 18th May 2021, whereas the Death Certificate produced as Plaintiff's Exhibit 5, and the Respondent's submissions, refer to 15th May 2021. Nothing in this appeal turns upon that discrepancy.)* 1. By a Statement of Defence filed on 4th March 2022, the Respondent denied the claim in its entirety, denied negligence, and prayed for dismissal of the suit with costs. 2. The suit proceeded to full hearing. The Appellant called three witnesses: 1. PW1 Violet Asigo testified as the mother of the deceased and gave the chronological of events about a relationship with the son who unfortunately lost his life during a road traffic accident. In the quest to discharge the burden of proof she placed reliance in several documentary evidence being police abstract, motor vehicle search, postmortem report, death certificate, Chiefs letter and death certificate and burial permit, grant of letters of administration ad litem. It was the case for the witness that ion receipt on the telephone call with regard to the occurrence of the accident she rushed to Mbale District Hospital only to find that he had been transferred to Mungoma hospital where it did not take long before the Medical Officer declared him as having pass on due to the fatal injuries sustained during the collision. It was further the evidence of PW1 that she is a single mother with five other siblings who entirely dependent on financial support advanced by the deceased. The other key witness before the Trial Court was Shadrack Obadiah who apparently witnessed the cause of the accident which happened at Kidundu area involving the boda boda and the motor vehicle registration KBU 148K. According to the chain of events at the accident it was the lorry which hit the deceased from behind and throwing him with his motor cycle into the ditch. As like any other accident the National Police Service from Vihiga Police Station swung into action and PC John Koech rushed to the scene where he confirmed a road traffic accident involving a motor vehicle KBU 145K and motor cycle KMFE 675B. The Investigating Officer further confirmed that the deceased was rushed to Vihiga Hospital and that is where he was pronounced dead in that cause of undergoing treatment. In the investigations he carried out PW3 placed before Court police abstract report and the brief sketch on the observations made at the scene of the accident. 2. In addition, the Appellant herself, who adopted her witness statement and testified as to the deceased's age being (21 years at the time of death), his occupation as a *boda boda* rider earning approximately Kshs. 1,000/= per day, his servicing of a motorcycle loan at Kshs. 3,000/=, and his maintenance of herself and his school-going siblings; 3. With regard to the Respondent, though he had filed a Defence and in furtherance to it his legal Counsel cross-examined the Appellant's witnesses no step was taken to call evidence in rebuttal. # The Judgment of the Trial Court 1. In a judgment delivered on 23rd July 2024, the learned trial Magistrate found for the Appellant and entered judgment as follows: | **Head** | **Award** | | --- | --- | | Liability | 100% against the Respondent | | Pain and suffering | Kshs. 50,000/= | | Loss of expectation of life | Kshs. 100,000/= | | Loss of dependency | Kshs. 1,000,000/= | | Special damages *plus costs and interest of the suit* | Kshs. 45,550/= | 1. In arriving at the award for loss of dependency, the learned trial Magistrate applied the multiplier/multiplicand formula, namely 1/3 × Kshs. 10,000 × 12 × 25 = Kshs. 1,000,000/=. The learned Magistrate adopted the statutory minimum wage as the multiplicand, adopted a dependency ratio of one-third on account of the deceased being unmarried and childless, and - while expressly acknowledging that on the evidence, and taking into account the vagaries of life, the deceased could have worked to an approximate retirement age of sixty (60) years - adopted a multiplier of twenty-five (25) years. # The Appeal 1. Aggrieved by that decision, the Appellant filed a Memorandum of Appeal dated 29th July 2024 (pages 1 and 2 of the Record of Appeal) setting out four grounds of appeal. In her written submissions, the Appellant has consolidated grounds 1, 2, 3 and 4 and has confined the appeal to a single complaint, namely, the quantum of the award for loss of dependency. 2. The Appellant prays that the finding of the trial Court on loss of dependency be set aside and substituted with an award computed on a multiplier of 37 years and a multiplicand of Kshs. 24,000/= per month, that is to say, 1/3 × 37 × 24,000 × 12 = Kshs. 3,552,000/=. 3. The Respondent filed no cross-appeal and no cross-objection. He nevertheless resists the appeal and, in his written submissions dated 7th November 2025, invites this Court to hold that liability was never established, and that the entire suit ought to be dismissed with costs. In the alternative, he proposes a lower quantum under the various heads. # The Appellant's Submissions 1. Learned Counsel for the Appellant, M/s Staussi, Asunah & Oluoch Advocates, submitted that the uncontroverted evidence of PW1 established that the deceased was 21 years old, was a *boda boda* rider earning Kshs. 1,000/= per day, was servicing a motorcycle loan at Kshs. 3,000/= per week, and was maintaining his mother and his school-going siblings. 2. It was urged that documentary proof of income is not a legal prerequisite, particularly in respect of persons engaged in the informal sector. Reliance was placed on *Jacob Ayiga Maruja & Another v Simeone Obayo [2005] eKLR*, where the Court of Appeal declined to subscribe to the view that the only means of proving a person's profession or earnings is by production of documents; and on *Nelson Rintari v CMC Group Ltd [2015] eKLR*, where the Court observed that a wrongdoer must take his victim as he finds him, and that to insist on books of account would occasion injustice to the many Kenyans who earn their livelihood in the informal sector, contrary to Article 159(2)(d) of the Constitution. 3. On the multiplicand, learned Counsel relied on *Oyugi Judith & Another v Fredrick Odhiambo Ongong & 3 Others [2014] eKLR* for the proposition that where income is undetermined, resort may be had to the government wage guidelines; and on *Petronila Muli v Richard Muindi Savi & Another (HCCA No. 98 of 2018)* and *Joseph Gatone Karanja v John Okumu Soita & Another [2022] KEHC 2839 (KLR)*, in which the Courts held that *boda boda* riders are properly comparable to the category of mechanics (motor vehicle repairers), laundry operators and light tractor drivers, rather than general labourers, for purposes of the Regulation of Wages (General) Order. 4. In respect of the multiplier, it was submitted that the trial Court, having itself found that the deceased could have worked to age 60, ought to have adopted a multiplier reflective of a working life of 39 years, and not 25 years. 5. With regard to the multiplicand figure, Learned Counsel submitted that the deceased's demonstrated capacity to service a weekly loan instalment of Kshs. 3,000/= while simultaneously supporting his mother and siblings pointed to earnings of the order of Kshs. 6,000/= per week, or Kshs. 24,000/= per month. # The Respondent's Submissions 1. Learned Counsel for the Respondent, M/s L. G. Menezes & Company Advocates, submitted first and foremost on liability, contending that the learned trial Magistrate erred in failing to appreciate that the Appellant's evidence did not attain the standard of proof on a balance of probabilities. It was urged that PW2's witness statement was a mere replica of the particulars of negligence pleaded at paragraph 5 of the Plaint and contained no concrete narration of the circumstances leading to the accident; and PW3 relied solely on the contents of the Police Abstract and produced neither the police file nor the Occurrence Book. 2. Further reliance was placed on Section 107(1) of the Evidence Act, Cap 80 of the Laws of Kenya; on the same vein the authorities in the cases of *Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR*, in which Odunga J (as he then was) cited *Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR* were cited for the proposition that a police abstract is not proof of the occurrence of an accident but only of the fact that an accident was *reported* at a particular Police Station; and on the observations of Aburili J in the *Kimunya* appeal that a police abstract does not prove *how* an accident occurred. 3. Learned Counsel further relied on *Milka Akinyi Ouma v Kenya Power & Lighting Co. Ltd & Another [2020] eKLR* (Mrima J) and *Donald Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR* for the proposition that a Defendant's failure to call evidence does not render a suit unopposed or the Plaintiff's evidence uncontroverted, and that the Court must in every case satisfy itself that the evidential burden has been discharged. 4. On quantum, the Respondent submitted and proposed as follows: 1. Pain and suffering – Kshs. 10,000/=, the deceased having died on the date of the accident, relying on *Awadh Ahmed Awadh v Shakil Ahmed Khan*, Mombasa HCCC No. 287 of 1990, and *James Gakinya Karienye v Perminus Kariuki Githinji*, HCCC No. 91 of 2014; 2. Loss of expectation of life – Kshs. 80,000/=, relying on *Satwidner Singh Bhogal v Satwidner Kaur Benawra & 2 Others*; 3. Special damages – Kshs. 5,500/= only, it being contended that the receipt for Kshs. 40,000/= in respect of the Letter of Administration bore no revenue stamp and was therefore inadmissible by virtue of section 19(1)(b) of the Stamp Duty Act, Cap 480; 4. Multiplier – 30 years, relying on *Xh White Water Ltd v Joseph Kimani Kamau & Another [2017] eKLR* (21-year-old deceased) and *Ruth Wangechi Gichuhi v Nairobi City County [2013] eKLR* (22-year-old deceased); 5. Multiplicand – Kshs. 9,000/= per month, nothing having been produced to show earnings, relying on *Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR*; and 6. Dependency ratio – one-third, the deceased having been unmarried and childless. 5. It is on this footing, the Respondent computed loss of dependency at 1/3 × 9,000 × 12 × 30 = Kshs. 1,080,000/=, to which he added special damages of Kshs. 5,500/= and from which he deducted the Law Reform Act awards of Kshs. 10,000/= and Kshs. 80,000/=, arriving at a net figure of Kshs. 995,500/=. 6. Notwithstanding that computation, the Respondent's ultimate prayer was that the appeal be dismissed and that the Appellant's suit be dismissed with costs. **The Duty of this Court as a First Appellate Court** 1. This being a first appeal, my mandate is settled. Section 78 of the Civil Procedure Act which clothes this Court with the powers and duties of a Court of original jurisdiction. In *Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*, the Court of Appeal for East Africa held that a first appeal is by way of a retrial, and that the appellate 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 that respect. 2. That duty is, however, tempered by the caution expressed in *Peters v Sunday Post Ltd [1958] EA 424*, that where the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at by the trial Court on conflicting testimony, the appellate Court will bear in mind that it has not enjoyed the advantage of seeing and hearing the witnesses, and that the view of the trial Court as to where credibility lies is entitled to great weight. 3. Equally, in *Mwanasokoni v Kenya Bus Services Ltd (1982–88) 1 KAR 278* and *Kiruga v Kiruga & Another (1988) KLR 348*, it was emphasized that an appellate Court will not ordinarily interfere with findings of fact by a trial Court unless those findings were based on no evidence at all, or on a misapprehension of the evidence, or unless the trial Court is shown demonstrably to have acted on wrong principles in reaching its findings. See also *Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR*. 4. I have accordingly re-read and re-evaluated the pleadings, the proceedings, the exhibits, the judgment of the trial Court, the grounds of appeal, the rival written submissions and the authorities relied upon by both parties. # Issues for determination 1. From the record and the submissions, the following issues fall for determination: (i) Whether the question of liability is properly before this Court, the Respondent having filed neither an appeal nor a cross-objection; and if so, whether the trial Court erred in finding the Respondent 100% liable. (ii) Whether this Court is entitled, on established principles, to interfere with the trial Court's assessment of damages for loss of dependency. (iii) If so, what is the appropriate multiplicand, multiplier and dependency ratio, and what award ought properly to be made. (iv) What orders should issue as to the remaining heads of damages, interest and costs. # Issue (i): Liability ## (a) Whether liability is properly in issue 1. The Respondent's submissions devote paragraphs 6 to 16 to an assault on the trial Court's finding of 100% liability, and conclude with a prayer that the Appellant's “case ought to be dismissed with costs to the Respondent”. That is, in substance, an invitation to this Court to set aside the decree of the trial Court in its entirety. 2. The difficulty confronting the Respondent is procedural, and it is insurmountable. The Respondent did not appeal against the judgment of 23rd July 2024 nor did he file any cross-objection. 3. The law in Order 42 rule 3 of the Civil Procedure Rules, 2010 provides that a Respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but may also take any cross-objection to the decree which he could have taken by way of appeal - *provided he has filed such objection in the appellate Court within the prescribed time or such further time as the appellate Court may allow*. 4. The distinction is fundamental. A Respondent who has not cross-appealed or cross-objected is entitled to *support* the decree on any ground, including grounds decided against him. He is not entitled to *attack* the decree, or to seek a result more favourable to himself than that which the trial Court gave him. A Respondent who is content to let a decree of 100% liability stand unchallenged for over a year, and who then seeks to overturn it in submissions filed in his opponent’s appeal, is asking this Court to grant relief he has never sought by any competent process. 5. I therefore hold that it is not open to the Respondent, in the absence of a cross-objection, to invite this Court to set aside the finding of liability or to dismiss the Appellant's suit. The finding of 100% liability entered by the trial Court stands, and this appeal is confined to quantum. ## (b) In any event, liability was proved 1. Lest it be thought that the Respondent's arguments are disposed of on a technicality alone, and mindful of the injunction in Article 159(2)(d) of the Constitution, I have considered them on their merits. They do not persuade me. 2. First, as to PW2. The complaint is that his witness statement mirrored the particulars of negligence pleaded in the Plaint and that he gave no “concrete narration” of the circumstances of the accident. With respect, a witness statement is almost invariably reduced into writing by Counsel, and a degree of correspondence between the statement of an eye witness and the particulars pleaded is neither surprising nor sinister - indeed, if the particulars of negligence were properly pleaded on instructions derived from the eye witness, one would expect precisely such correspondence. What matters is whether the witness was tested and whether his account survived that testing. PW2 was available for cross-examination. The Respondent's Counsel cross-examined him. Nothing on the record before me suggests that his account of the collision was shaken, contradicted or recanted, and no evidence to the contrary was tendered. 3. Secondly, the reliance on *Milka Akinyi Ouma v Kenya Power & Lighting Co. Ltd (supra)* is misplaced. That decision turned on its own peculiar facts. There, the sole eye witness (PW2) effectively recanted her evidence in cross-examination - stating that she could not recall what had happened, that she had not recorded the zig-zagging of the vehicle in her statement, and that she could not recall on which side of the road the accident occurred — and, critically, there was no re-examination to rehabilitate her testimony. It was in those circumstances that Mrima J held that there was no evidence at all on how the accident occurred. Nothing of the sort is disclosed on this record. The principle in *Milka Akinyi Ouma* that the Court must always satisfy itself that the evidential burden has been discharged is sound and I respectfully adopt it; but it does not assist the Respondent here, because the burden was discharged. 4. Thirdly, the reliance on *Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR* is, if anything, an authority against the Respondent. At paragraph 50 of that judgment Odunga J (as he then was) said: *“However, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer… While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the Defendant, the failure to call the investigations officer is not necessarily fatal in accident claims.”* 1. It is also at paragraph 51, dealing with facts materially indistinguishable from the present. The learned Judge held that where there was an eye witness who narrated how the accident took place, the Plaintiffs' case could not be dismissed merely on the ground that the Investigating Officer did not testify during the pendency of the proceedings. 2. The same is true of *Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR* in which Aburili J as she then was held that a police abstract proves that an accident was *reported*, not *how* it occurred — a proposition with which I respectfully and entirely agree. But the learned Judge went on, at the heart of that judgment, to hold that the trial Magistrate had erred in treating the absence of a police abstract as fatal, and that “it is not just documentary evidence that can prove all facts of a case”. The *Kimunya* appeal ultimately failed not because of the police abstract, but because the appellant’s own testimony disclosed that he had run across the road and had not seen the vehicle. That is the antithesis of the present case, in which the Appellant tendered an independent eye witness. 3. Fourthly, the Respondent's submission that his failure to testify does not render the Appellant's evidence uncontroverted is correct as a statement of principle, *Milka Akinyi Ouma* and *Donald Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR* so hold, and the trial Court remained under a duty to scrutinize the evidence. Nevertheless, the principle cuts only so far. The legal burden under Section 107(1), 108, 109 & 112 of the Evidence Act rested throughout on the Appellant’s case. Once she adduced credible evidence of an eye witness, supported by the Police Abstract and the Death Certificate, the evidential burden shifted to the Respondent under Sections 108 and 109 & 111 of the Act to provide a rebuttal on the *prima facie* case laid down by the Appellant. However, he elected to call no evidence at all. He did not deny driving the lorry. He offered no alternative account of the collision. He pleaded no particulars of contributory negligence that he then was to endeavour to prove within the requirements of the law. 4. The standard on burden of proof is that as stated by Kimaru J in *William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526*: a party who establishes his case to a percentage of 51% as against 49% of the opposing party has established his case on a balance of probabilities. And as Denning J put it in *Miller v Minister of Pensions [1947] 2 All ER 372*, cited with approval in *Techard Steam*, “if the evidence is such that the tribunal can say: we think it more probable than not, the burden is discharged”. 5. Insofar as the evidence of PW1, PW2 and PW3, unanswered as it was by any evidence whatsoever from the Respondent, the learned trial Magistrate was perfectly entitled to find it more probable than not that the collision was occasioned by the negligence of the Respondent. There is no basis upon which I could properly disturb that finding, and I decline to do so. 6. I would add to this that the Respondent's proposition, taken to its logical end, would mean that a Defendant may file a bare denial, call no evidence, offer the Court no competing version of events, and yet succeed by criticizing the form of his opponent's witness statement. That is not the law in Kenya. As the Court of Appeal observed in *Donald Toroitich Arap Moi (supra)*, the trial Court has a duty to examine the evidence to satisfy itself that the claim has been proved; the trial Court here did so, and it arrived at a conclusion amply supported by the record. In the case of *Scott v London & St Katherine Docks Company [1861-73] ALL E.R Rep 246* where the learned Chief Justice quoted the following: - *"Where the thing is shown to be under the management of the Defendant or his servants and the accident is such an ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the Defendant that the accident arose from want of care."* 1. There is also a clear exposition of the law relevant to the facts of this case in the case of *Lloyde v West Midlands Gas Board [1971] 2 ALL ER 1246* in which it was stated by Megaw J that: *"I doubt whether it is right to describe res ipsa loquitur as a 'doctrine'. I think it is no more than an exotic, though convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a Plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the Defendant or of someone for whom the Defendant is responsible, which act or omission constitutes a failure to take proper care for the Plaintiff's safety. I have used the words 'evidence as it stands at the relevant time'. I think this can most conveniently be taken as being at the close of the Plaintiff's case. On the assumption that a submission of no case is then made, would the evidence, as it then stands, enable the Plaintiff to succeed because, although the precise cause of the accident cannot be established the proper inference on a balance of probability is that that cause, whatever it may have been, involved a failure by the Defendant to take due care for the Plaintiff's safety. If so, res ipsa loquitur. If not, the Plaintiff fails. Of course, if the Defendant does not make a submission of no case, the question still falls to be tested by the same criterion, but evidence for the Defendant, given thereafter, may rebut the inference. The res, which previously spoke for itself, may be silenced, or its voice may, on the whole of the evidence, become too weak or muted."* 1. The facts of this case seems to resonate well with the principles in the case of *Ng Chun Pui and Ng Wang King v Lee Cheun Tat et al [198] UK PC 7*. Thus: *“The burden of proving negligence rests throughout the case on the Plaintiff. Where the Plaintiff has suffered injuries as a result of an accident which ought not to have happened if the Defendant had taken due care, it will often be possible for the Plaintiff to discharge the burden of proof by inviting the Court to draw the inference that on the balance of probabilities the Defendant must have failed to exercise due care, even though the Plaintiff does not know in what particular respects the failure occurred…… it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”* 1. Therefore, a review of the cases and the evidence on record finds no room of entry by the Respondent to absolve him of any acts of negligence and breach of this duty of care to other road users. The evidence is very clear that the motor cycle rider was hit from the rear as stated by PW2 who happened to be an eye witness to the collision. 2. Ground (i) accordingly fails. Liability at 100% against the Respondent is upheld. # I. Issue (ii): The principles governing interference with quantum 1. The assessment of general damages is a matter for the discretion of the trial Court, and an appellate Court will not lightly substitute its own figure. The classic statement is that of Kneller JA in *Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A. M. Lubia & Olive Lubia (No. 2) (1982–88) 1 KAR 727*: *“The principles to be observed by an appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”* 1. To like effect are *Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55*; *Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457*; and *Jane Chelagat Bor v Andrew Otieno Onduu (1988–92) 2 KAR 288*, in which the Court of Appeal said that before an appellate Court interferes it should be satisfied that the Judge acted on a wrong principle of law, or misapprehended the fact, or made a wholly erroneous estimate, and that “the scale must go down heavily against the figure attacked if the appellate Court is to interfere”. 2. Applying those principles, I am satisfied that this is one of the cases in which interference is warranted, for three cumulative reasons. 3. First, as to the multiplier, the learned Magistrate's reasoning is internally inconsistent. The learned Magistrate expressly found - having weighed the evidence *and* the vagaries of life - that the deceased “could have worked until reaching an approximate retirement age of sixty years”. The deceased was 21. That finding yields a working life of 39 years. The learned Magistrate then adopted a multiplier of 25 years without articulating any reason for the further discount of 14 years. A multiplier is, of course, never a matter of arithmetic subtraction; discounts for accelerated receipt, for the vicissitudes of life, and for the finite period of dependency are always required. However, where a trial Court makes an express finding on working life *already accounting for the vagaries of life*, and then departs from that finding by a further 36% without explanation, the appellate Court is left unable to discern the principle applied. That is a proper occasion for interference. 4. Secondly, as to the multiplicand, the learned Magistrate misapprehended the evidence. The uncontroverted evidence of PW1 was that the deceased was servicing a motorcycle loan at Kshs. 3,000/= per week - some Kshs. 12,000/= per month and was at the same time maintaining his mother and his school-going siblings. A monthly income of Kshs. 10,000/= is arithmetically incapable of sustaining a monthly loan obligation of Kshs. 12,000/=, let alone of supporting a household in addition. Having accepted PW1's evidence (as the learned Magistrate plainly did, for the deceased's age, occupation and dependency were all taken from it), it was not open to the Court to adopt a multiplicand demonstrably inconsistent with that same evidence. A Court cannot accept a witness's evidence for one purpose and disregard it for another without explanation. 5. Thirdly, the resulting figure is inordinately low on the Respondent's own case. It is a striking feature of this appeal that the Respondent who resists any increase himself proposes a loss of dependency computation of 1/3 × 9,000 × 12 × 30 = Kshs. 1,080,000/=, a figure exceeding the trial Court's award of Kshs. 1,000,000/= by Kshs. 80,000/=. Where even the paying party's most conservative computation exceeds the award under appeal, the conclusion that the award is inordinately low is difficult to resist. 6. For those reasons I am satisfied that the threshold in *Kemfro (No. 2)* is met, and that this Court is entitled, indeed obliged, to set aside the award for loss of dependency and to substitute its own assessment. # J. Issue (iii): Re-assessment of loss of dependency 1. The Court in *Francis K. Righa versus Mary Njeri (Suing as Legal Representative of the Estate of James Kariuki Nganga2021 eKLR, the C.A citing Butler 1984 eKLR,* restated the guidelines on the role of an Appellate Court on the question of reassessment of damages and states; *“....that assessment of damages is more like an exercise of discretion by the trial Court and that an appellate Court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable Court would have arrived as is so inordinately high or low that no reasonable Court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision on the choice of a multiplier and multiplicand, we take it from the decision of the Court in the case of Roger Dainty versus Mwinyi Omar Haji & Another 2004 that to ascertain a reasonable multiplier in each case, the Court should consider relevant factors like the income of the deceased, the kind of work he was engaged in before his death, the prospects of promotion and his expectations of working life.”* 1. A claim for loss of dependency is founded on Section 4 of the Fatal Accidents Act, Cap 32, which provides that every action brought under the Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and that the Court may award such damages as it thinks proportioned to the injury resulting from the death. 2. I pause to observe, as the point bears on the assessment, that the deceased's school-going siblings are not within the class of persons for whose benefit an action lies under Section 4. The statutory dependant in this case is the Appellant, the deceased's mother. The evidence that the deceased also supported his siblings is nevertheless relevant, and I take it into account, as cogent evidence of his earning capacity and of the extent to which he devoted his income to the maintenance of others rather than to himself. 3. The conventional method of assessment is the multiplier/multiplicand approach, subject always to the caution of Ringera J (as he then was) in *Marko Mwenda v Bernard Mugambi & Another, Nairobi HCCC No. 2343 of 1993*, cited with approval in *Techard Steam*, that the multiplier approach “is just a method of assessing damages and not a principle of law or dogma”, to be abandoned where the facts do not facilitate its application. Here the facts do facilitate its application. ## (a) The Multiplicand 1. The starting point is that the multiplicand is the deceased’s net income, or, more precisely, that portion of his income which was, or would have been, available for the support of his dependants. 2. I accept at once, as both parties do, that the absence of documentary proof is not fatal. In *Jacob Ayiga Maruja & Another v Simeone Obayo [2005] eKLR* the Court of Appeal held that it does not subscribe to the view that the only way of proving a person's profession is by production of certificates, or that the only way of proving earnings is by production of documents, since such a 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”. The same sentiment animates *Nelson Rintari v CMC Group Ltd [2015] eKLR* and Article 159(2)(d) of the Constitution. 3. However, that principle does not license a Court to pluck a figure from the air. As the Court of Appeal in *Wambua v Patel & Another [1986] KLR 336* put it, damages for loss of earnings must be established by satisfactory evidence, approached with caution, though a victim does not lose his remedy merely because quantification is difficult. And in *Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR* and *Douglas Odhiambo Apel & Another v Telkom Kenya Limited [2014] eKLR* both authorities placed before me in the Appellant's own bundle the Court of Appeal deprecated the practice of throwing “abstract figures” at the Court unsupported by evidence. 4. This Court applying those principles, I am unable to accept the Appellant's proposed multiplicand of Kshs. 24,000/= per month. That figure is arrived at in the Appellant's submissions by the simple expedient of doubling the weekly loan instalment of Kshs. 3,000/= to reach “an estimated Kshs. 6,000/= per week”. No witness spoke to any such figure, and no reason is offered for the doubling. It is submission, not evidence, and pleadings and submissions are not evidence. 5. Equally, I am unable to accept the Respondent's proposed multiplicand of Kshs. 9,000/= per month, which is below the statutory minimum wage applicable at the material time and takes no account whatever of PW1's evidence, nor for the reasons already given at paragraph 48 above, can the trial Court's figure of Kshs. 10,000/= stand. 6. What, then, does the evidence establish? PW1's uncontroverted testimony was that the deceased took approximately Kshs. 1,000/= per day from his *boda boda* business, a gross monthly figure of the order of Kshs. 26,000/= to Kshs. 30,000/=. From that must be deducted the working expenses of the business, fuel, servicing, tyres, licences and the loan instalments of some Kshs. 12,000/= per month. Making a broad but realistic allowance for those outgoings, a net monthly figure of Kshs. 15,000/= appears to me to be fair, conservative and consonant with the evidence. 7. That figure is fortified from a second direction. In *Petronila Muli v Richard Muindi Savi & Another (HCCA No. 98 of 2018, Kitui)*, Limo J held — and in *Joseph Gatone Karanja v John Okumu Soita & Another [2022] KEHC 2839 (KLR)* the Court agreed - that *boda boda* riders are not properly classified as “general labourers” under the Regulation of Wages (General) Order, but fall within the semi-skilled category comparable to mechanics (motor vehicle repairers), laundry operators and light tractor drivers, attracting a materially higher minimum wage in the “all other areas” column into which Vihiga falls. The minimum wage so applicable at the date of death exceeded the Kshs. 10,000/= adopted by the trial Court. A figure of Kshs. 15,000/= represents a modest and evidentially justified premium over that statutory floor, reflecting evidence of actual earnings which the Respondent chose not to challenge by any evidence of his own. I therefore adopt a multiplicand of Kshs. 15,000/= per month. ## (b) The Multiplier 1. The multiplier is not the deceased's remaining working life. It is the number of years' purchase which, when applied to the annual dependency and received as a lump sum, will fairly compensate the dependants. It must be discounted to reflect the accelerated receipt of a capital sum capable of investment, the vicissitudes of life, and the likely duration of the dependency itself: see *Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No. 1638 of 1988* (Ringera J) and *Grace Kanini v Kenya Bus Services, Nairobi HCCC No. 4708 of 1989*. 2. Three considerations bear particularly on this case. First, the deceased was 21 years old and in good health. His working life ahead of him was long — the trial Court found it would have run to age 60, and I see no reason to differ from that finding. Secondly, the sole statutory dependant is the deceased's mother. As Limo J observed in *Petronila Muli (supra)*, where the dependants are the parents of a young unmarried deceased, the period of dependency is necessarily circumscribed: the deceased would in the ordinary course have married and his obligations would have shifted to his own family, and in any event the parents' own life expectancy is shorter than the deceased's working life. In *Petronila Muli* the Court reduced a multiplier of 36 years to 20 years for a deceased aged 19. That authority is one on which the Appellant herself relies, and she cannot take its benefit on the multiplicand while disclaiming its logic on the multiplier. Thirdly, the comparable awards. In *Xh White Water Ltd v Joseph Kimani Kamau & Another [2017] eKLR* a multiplier of 30 years was adopted for a deceased aged 21; in *Ruth Wangechi Gichuhi v Nairobi City County [2013] eKLR* a multiplier of 30 years was adopted for a deceased aged 22. Both are directly on point as to age, and both were cited to me by the Respondent, who himself proposes 30 years. 3. This Court weighing all these considerations, the Appellant's proposed multiplier of 37 years is, in my judgment within view of the legal parameters and is not excessive or punitive for that matter. It amounts to little more to be inconsonant with the age of retirement of persons working the Public Service and also the indicator on life expectancy in Kenya which now stands for men above 61 years old. Equally, the trial Court's multiplier of 25 years is, for the reasons at paragraph 47, unexplained and unduly low, and out of step with the comparable awards. 4. For those reasons I adopt a multiplier of 37 years, which accords with the figure representing a notional number of years which are calculated based on the remaining working life of the Claimant up to the retirement age typically 60 for those in the Public Service or more to those who are self-employed or in private practice or business but discounted significantly. This discount amount for accelerated receipt that is receiving a lump sum affront rather than over decades and the general vicissitudes of life such as risk of illness, unemployment or early mortality. ## (c) The Dependency Ratio 1. It is trite that there is no rule of law fixing the dependency ratio at any particular fraction. In *Jane Chelagat Bor v Andrew Otieno Onduu (supra)* the Court of Appeal held that “there is no two-thirds rule as dependency is a question of fact”, and in *Beatrice Wangui Thairu (supra)* Ringera J observed that the extent of dependency is a question of fact to be determined in each case, and that findings of fact have for too long masqueraded as holdings on points of law. 2. The conventional starting point, however, is that where a deceased was married with a family, two-thirds of his income is treated as having been devoted to his dependants, and where he was unmarried and childless, one-third. 3. The deceased here was 21, unmarried and without children. Both parties agree on a ratio of one-third and the trial Court so held. I see no reason to depart from it. The dependency ratio is 1/3. ## (d) Computation of damages 1. Applying those figures: 1/3 × Kshs. 15,000 × 12 × 37 = Kshs. 2,220,000/=. Loss of dependency is accordingly assessed at Kshs. 2,220,000/=. # K. DOUBLE COMPENSATION: THE LAW REFORM ACT AWARDS 1. There remains a question of principle which, although the Appellant did not raise it, the Respondent did, and which this Court cannot properly ignore when re-assessing damages afresh: the rule against double compensation. 2. The trial Court awarded Kshs. 50,000/= for pain and suffering and Kshs. 100,000/= for loss of expectation of life under the Law Reform Act, Cap 26, and a separate sum for loss of dependency under the Fatal Accidents Act, Cap 32, without making any deduction. Where, as here, the beneficiaries of the estate under the Law Reform Act and the dependants under the Fatal Accidents Act are substantially the same person, the settled position is that the damages awarded under the Law Reform Act must be taken into account in, and deducted from, the award under the Fatal Accidents Act, so that the estate does not benefit twice from the same death. 3. That principle was laid down by the Court of Appeal in *Kemfro Africa Limited & Another v Lubia & Another [1976–1985] 1 EA 184*, and has been consistently applied: see *Kemfro Africa Limited v Lubia and Olive Lubia, Nairobi Civil Appeal No. 21 of 1984*; *Dilip Asal v Harma Muge & Diocese of Eldoret, Kisumu CA No. 49 of 2000*; *Kamaru & Another v Mwangondu & Another, Civil Appeal No. 14 of 1989*; and *Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja, deceased) v Kiarie Shoe Stores Limited [2015] eKLR*. 4. Since I am setting aside the dependency award and substituting my own assessment, it is right that I apply the correct principle in doing so. The sum of Kshs. 150,000/= awarded under the Law Reform Act must be deducted from the sum of Kshs.2,220,000/= assessed under the Fatal Accidents Act. # L. The remaining heads 1. The Appellant has not appealed against the awards for pain and suffering (Kshs. 50,000/=), loss of expectation of life (Kshs. 100,000/=) or special damages (Kshs. 45,550/=). The Respondent, for the reasons given at paragraphs 28 to 32 above, has filed no cross-objection and cannot now seek their reduction. Those awards are therefore not open to disturbance in this appeal and they stand. 2. For completeness I record that the Respondent’s challenge to the receipt of Kshs. 40,000/= for the Letter of Administration, founded on Section 19(1)(b) of the Stamp Duty Act, Cap 480, was a matter of evidence and admissibility for the trial Court, which received the document and acted upon it. Absent a cross-objection, that finding is beyond the reach of this appeal. In any event, and as was observed in *Mary Shesia Kivairu v Jeffa Enterprises Ltd & Another, Kakamega HCCC No. 17 of 2004*, a Court may properly accept that expenses of this character must in the nature of things have been incurred. # M. Disposition 1. The upshot of the foregoing is that this appeal partially succeeds. The finding on liability stands at 100%. The award for loss of dependency is set aside and substituted as set out below. 2. The Judgment and Decree of the Honourable J. A. Agonda (PM) delivered on 23rd July 2024 in Vihiga PMCC No. 190 of 2021 is hereby set aside and substituted with the following: *(a) Liability is entered at 100% against the Respondent.* *(b) Damages are assessed as follows:* | | ***Head*** | ***Amount (Kshs.)*** | | --- | --- | --- | | *(i)* | *Pain and suffering (Law Reform Act)* | *50,000.00* | | *(ii)* | *Loss of expectation of life (Law Reform Act)* | *100,000.00* | | *(iii)* | *Loss of dependency (Fatal Accidents Act) — 1/3 × 15,000 × 12 × 37* | *2,220,000.00* | | | *Less: awards under the Law Reform Act, to avoid double compensation* | ***(150,000.00)*** | | | ***Net loss of dependency*** | ***2,070,000.00*** | | *(iv)* | *Special damages* | *45,550.00* | | | ***TOTAL*** | ***2,115,550.00*** | *(c) The Appellant shall have judgment against the Respondent in the sum of Kshs. 2,115,550.00.* *(d) Interest shall accrue on the general damages at Court rates from the date of the judgment of the trial Court, being 23rd July 2024, until payment in full.* *(e) Interest shall accrue on the special damages at Court rates from the date of filing of the suit in the subordinate Court until payment in full.* *(f) The Appellant shall have the costs of the suit in the subordinate Court.* *(g) The Appellant, having substantially succeeded on the only issue she brought before this Court, shall have the costs of this appeal.* It is so ordered. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 9TH DAY OF SEPTEMBER 2026.** **……………………………………..** **R. NYAKUNDI** **JUDGE**