Lucy Waithira Mwangi & Mary Njoki Warui (suing On Their Own Behalf and As Administrators of The Estate of William Warui Githae - Deceased) v Jimwa Consolidated Agencies & 1 other

the deceased. According to the pleadings and evidence tendered at trial, on 16th November 2012 at around 8.30 p.m. the deceased was a pillion passenger being ferried by Josphat Ikunga Ngao, PW 2, on a motorcycle registration number KMCR 939C at Horticulture Crop Development Authority area along the Karatina-Sagana road when the same was involved in an accident with motor vehicle registration number KBR 895K/ZD 8420 owned by the 1st respondent and being driven by the 2nd respondent as its authorized driver, employee, servant or agent. The appellants blamed the respondents for the accident alleging that the manner in which the 2nd respondent drove the vehicle was negligent in that he caused or permitted it to lose control and violently hit the motor cycle. The deceased sustained fatal injuries as a result of the accident. His estate thereby suffered loss and damage. 3. The respondents filed a common statement of defence dated 27th November 2013 and denied the claim by the appellants that they were to blame for the accident. They instead laid blame upon the rider motor cycle registration number KMCR 939C whom they alleged was either wholly to blame or substantially contributed thereto. 4. The case proceeded for hearing whereat the appellants called three witnesses PW 1, IP Agnes Magiri who was the investigating officer; PW 2 Josphta Ikunga Ngao, who was the rider of the ill-fated motorcycle ferrying the deceased and PW 3, Lucy Waithera Mwangi, the widow of the deceased. 5. The respondents closed their case without calling any witness or offering any evidence. 6. After the trial the court found the respondents 100% liable for the accident and assessed and granted the following awards of damages: a. Pain and suffering KShs 10,000/= b. Loss of expectation of life KShs 80,000/= c. Loss of dependency KShs 1,509,998/= d. Special damages KShs 28,490/= 7. The appellants were dissatisfied with the assessment of damages for loss of dependency and now appeal to this court to set aside the trial court award and make a fresh assessment. 8. The appeal was canvassed by way of written submissions filed by learned counsel for the appellant. The respondents, despite being duly served and granted several opportunities by this court, did not file submissions. 9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another v. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18319/eng@2025-11-18 2

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10. Learned counsel for the appellant raised one issue for this court’s determination, that is, whether the trial court applied the wrong multiplicand in determining damages for loss of dependency. Analysis and Determination 11. I have considered the grounds of appeal, the submissions by learned counsel for the appellants and the authorities cited. The issue for determination is whether or not the learned trial magistrate made a correct assessment of general damages for loss of dependency. 12. It is an established principle of law that assessment of damages is at the discretion of the trial court. The Court of Appeal in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR stated this principle in the following terms: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance.” 13. However, the circumstances under which an appellate court may interfere with an award of quantum of damages made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated: “ 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 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited v Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.” 14. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows: “ 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 arrived at a figure which was either inordinately high or low.” 15. Dependency is a matter of fact which must be proved by evidence. In the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR that:“ Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.” 16. The court must therefore find as a fact that there were dependents of the deceased before embarking on the determination of the award of dependency. The trial court did not specifically address that issue but I have read the evidence of Lucy Waithera Mwangi, the 1st appellant herein who testified and gave evidence that she had seven children with the deceased, two who were adults at the time and five were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18319/eng@2025-11-18 3

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minors. She produced certificates of birth for three of the children and also a letter from the chief, Kariti location to support the issue of dependency. I am satisfied that dependency was proved on a balance of probability. 17. The appeal is only on the multiplicand adopted by the trial court for assessment of loss of dependency under the Fatal Accidents Act. 18. The trial magistrate adopted the net pay of the deceased as the multiplicand. In arriving at the net pay, the trial court deducted from the gross pay all deductions made on the pay-slip, statutory and others. The deceased’s payslip for the month of February 2012 was produced in evidence as exhibit. It showed that his earnings were made of basic salary KShs 30,472/=; rental house allowance KShs 8,000/= and commuter allowance KShs 5,000/= making his total earnings or gross pay KShs 43,472/=. There were various deductions all totaling to KShs 27,742/= and therefore his net pay for that month was KShs 15,729/=. This is what the trial court adopted as the multiplicand. 19. Learned counsel for the appellants has submitted strongly that the trial court erred in its approach towards arriving at the multiplicand. Learned counsel submits that the trial court had at its disposal for its guidance the case of Board of Governors of Ekalakala Secondary School v Francisca Katumbi Ndwili (suing as Legal Representative of the Estate of Shadrack Kyalo Mwania) [2013] KECA 428 (KLR) for the correct approach towards arriving at the multiplicand but it did not follow it. In that case, the Court of Appeal held that: “ The deceased herein died on 1st August 2006, hence we shall use the deceased's payslip at the time of his death which is the July, 2006 pay-slip to calculate the multiplicand. From the payslip, we will add the deceased's basic salary of Kshs. 20,655/=, House allowance of Kshs. 12,000/=, Medical allowance of Kshs. 2,246/= and Transport allowance of Kshs. 1,482/= to get the deceased’s total earnings of Kshs. 36,383/=. We find the multiplicand that should have been used by the trial court was the deceased's total earnings less statutory deductions (Kshs. 36,383/= - Kshs. 6,705/=, being the tax payable).” 20. In the subsequent case of Vincent Sululu & another v Rose Wanjiru [2016] KECA 156 (KLR) the Court of Appeal considering a similar issue was even more explicit when it stated that: “ The deceased’s payslip for July 2009 showed that his basic salary was Kshs. 23,165/=, medical allowance Kshs.750/= hardship allowance Kshs. 1,200/=, housing supplementation Kshs. 2,050/= police risk allowance Kshs. 5,000/= and SACCO share dividends – Kshs. 5,606/=, making his total earnings Kshs. 37,771/=. If the SACCO share dividends are subtracted, the monthly gross income was Kshs. 32,165/=. The statutory deductions were: WCPS contribution of Kshs.463/=, PAYE of Kshs. 3,918.25 and NHIF of Kshs.320/=, a total of Kshs. 4,701.25. The gross income of Kshs. 32,165/= less statutory deductions of Kshs. 4,701.25 leaves a balance of Kshs. 27,463.75 which should have been the correct multiplicand. In computing a reasonable multiplicand, voluntary deductions or any deductions from the deceased’s salary that were not statutory in nature, for example, SACCO contributions and loan repayments, should not have been subtracted from the gross earnings. This is because such deductions formed part of the deceased’s regular income which he would have expended in maintaining his dependants but chose either to save or utilize in repayment of a loan, which, more often than not, was acquired for the benefit of the deceased’s dependants.” 21. It is apparent from these decisions of the Court of Appeal that the trial court erred in its approach in determining the correct multiplicand in this case by deducting both statutory expenses (WCPS, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18319/eng@2025-11-18 4

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PAYE and NHIF) and non-statutory expenses (Bank loans, Union dues, social welfare organization subscriptions, Sacco deposits and loans) the latter being for the benefit of the deceased. That error led the court to award an inordinately low sum of general damages for loss of dependency under the Fatal Accidents Act. I am well guided by these decisions and find that the trial court’s award has to be disturbed. 22. The High Court, in a decision coming after the two decisions of the Court of Appeal above approached the statutory deductions a little differently (even though without reference to the Court of Appeal cases above) on which of the statutory deductions are amenable to deduction by the court in considering the multiplicand. In the case of Evaline Chepkirui (suing as the Legal Representatives of the Estate of the Late Kiprotich Cheruiyot) v Stella Asuga & another [2021] KEHC 7456 (KLR) the High Court on appeal held that: “ …not all deductions in a pay slip are discounted in the ascertainment of the multiplicand for purposes of loss of dependency. …only the tax element is to be deducted from the gross pay. PAYE is tax payable to the government. However, statutory and other deductions whose beneficial owner is the deceased and his estate, are not to be discounted when assessing dependency” (Underlining mine for emphasis). 23. The holding of the High Court in that case is attractive as it makes only the tax element deductible leaving out other statutory deductions such as WCPS and NHIF available as part of the sum applicable as the multiplicand. I find it attractive because of, for instance, the recent changes in the law where statutory deductions such as the Housing Levy have been introduced. Sometimes it is not immediately clear to whose benefit these deductions are, whether the executive arm of government in advancing its development agenda, whether the employee from whom they are being deducted or the general public who are required to partake of the projects to which the funds are applied. Unfortunately, the government has been reluctant to classify them as taxes as ordinarily known. 24. The High Court in the above decision does not seem to have considered the Court of Appeal decision in the Vincent Sululu case above where all statutory deductions namely WCPS, PAYE and NHIF were reduced from the multiplicand. Perhaps the High Court had the benefit of foresight in that case. However, this court is bound by the Court of Appeal decision and will follow it herein even as I note that none else but the Court of Appeal in the Ekalakala Secondary School case above appreciated the difficulties of getting the correct multiplicand in this type of case when it remarked that: “ Case law relating to how a suitable multiplicand should be determined under the Fatal Accidents Act are varied; some propose that the multiplicand should be the deceased's basic pay less statutory deduction and living expenses (see Dainty -v- Haji & another- Civil Appeal No. 59 of 2004); others propose that the multiplicand should be the deceased's basic pay in addition to allowances he is paid less statutory deductions and living expenses(see Kenya Horticultural Exporters ltd -v- Julius Munguti Maweu- Civil Appeal No. 9 of 2004); while others propose that the multiplicand should be the deceased's net salary less living expenses (see Kenya Bus Services Ltd. -v- Dina Kawira Humphrey – Civil Appeal 295 of 2000).” 25. The trial court adopted as the multiplicand the net pay for the deceased for that month of KShs 15,729/ = without considering which types of deductions had been made in the payslip. From the decisions cited above, only statutory deductions ought to have been made. The statutory deductions were WCPS contribution KShs 609.45; PAYE Kshs 6,974/=; NHIF KShs 320/= making a total of KShs 7,903.45. 26. In his calculations, learned counsel has factored in the statutory deductions PAYE and NHIF but not WCPS (Women and Children Pensions Scheme) which is a statutory deduction as well thereby getting https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18319/eng@2025-11-18 5

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the figure of 7,294/=. Going by the Court of Appeal decision in the Vincent Sululu case above WCPS was also a statutory deduction to be made on the gross pay to arrive at the correct multiplicand. 27. The deceased’s net pay for purposes of computing the general damages for loss of dependency was therefore, gross earnings KShs 43,472/= less statutory deductions KShs 7,903.45 = KShs 35,568.55. 28. Applying this multiplicand to the other parameters used by the trial court, the loss of dependency would work out to be: KShs 35,568.55 x 12 x 12 x 2/3 = KShs 3,414,580.80 29. Consequently, I find that the trial court’s award of KShs. 1,509,984/= in damages for loss of dependency based on the multiplicand applied was inordinately low. The same is therefore for setting aside as I hereby do and substitute it with an award of KShs 3,414,580.80/= for loss of dependency. 30. The appeal is allowed to that extent with the rest of the awards remaining as made as there was no challenge on the same. 31. Costs are to the appellants. 32. Orders accordingly. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 18TH DAY OF NOVEMBER 2025. ANDAYI W. F. JUDGE In the presence of: Mutua for Appellant. N/A for the Respondent. Ummu h/b for Job: Court Assistant. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18319/eng@2025-11-18 6

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