Margaret Gesare Masese v Duncan Mogeni Matara & 1 other

4. Upon evaluating the evidence adduced by the Respondents and considering the written submissions filed by both parties, the learned trial magistrate proceeded to assess damages and entered judgment in favour of the Respondents in the aggregate sum of KES 4,231,100. The award comprised of KES.50,000 for pain and suffering; KES 150,000 for loss of expectation of life; KES 4,000,000 for loss of dependency; and KES 31,100 as special damages. 5. Aggrieved by the assessment of quantum, the Appellant instituted the present appeal. Analysis and Determination 6. As this is a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence on record and to draw its own independent conclusions. However, in doing so, it must bear in mind that it did not see or hear the witnesses and should therefore accord due deference to the trial court’s findings. The appellate court will not lightly interfere with those findings unless it is demonstrated that the trial court acted on no evidence, misapprehended the evidence, or applied the wrong legal principles in arriving at its determination. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123). Issues for determination 7. The principles governing appellate interference with awards of damages are well-settled. In Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia [1982–88] KAR 727, the Court of Appeal restated the position as follows: “ 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 for 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.” 8. I have carefully considered the Record of Appeal together with the written submissions filed by the Respondents. The Appellant had, however, not filed any submissions by the time this judgment was prepared. From the grounds of appeal and the material before the Court, the following issues arise for determination: 1. The multiplicand was justified 2. The multiplier was correct 3. Dependency ratio was proper 4. Law Reform Act awards were justified 5. The total award was excessive. 1. Whether the Multiplicand of KSh 20,000 was justified 9. The Respondents asserted that the deceased earned a monthly income of KES. 20,000 from his activities as a peasant farmer. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18459/eng@2025-11-26 2

page 2 of 4

10. In Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, the Court of Appeal the Court of Appeal emphatically rejected the proposition that earnings can only be proved through documentary evidence. The Court stated as follows: “ We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of 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.” 11. It therefore follows that, even in the absence of documentary proof, the claimed income must still be established on a balance of probabilities, and any multiplicand adopted by the trial court must rest on a rational, objective, and evidential foundation. 12. In the present matter, no documentary evidence was tendered to substantiate the assertion that the deceased earned a monthly income of KES. 20,000. The alleged earnings were therefore not proved, and the trial court ought to have resorted to an objective indicator such as the applicable statutory minimum wage in determining a reasonable multiplicand. 13. As at the date of the judgment of the trial court, the applicable minimum wage for an unskilled worker in the agricultural sector was KES. 7,544.65 per month. In the absence of proof of the deceased’s actual earnings, this statutory figure provided the most reasonable and legally supportable basis for determining the multiplicand to be applied in the assessment of loss of dependency. 2. Whether the Multiplier of 25 years was appropriate 14. The deceased was aged 25 years at the time of his death. In Board of Governors, Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR, the Court of Appeal underscored that the choice of a multiplier must reflect the deceased’s age, the nature of their work, and the contingencies and uncertainties of life. The Court observed that: “ A multiplier is not a matter of strict mathematical calculation but a reasonable estimate based on the age of the deceased, the nature of work, the uncertainties of life, and the expected remaining productive years.” 15. Similarly, in Kenya Breweries Ltd v Saro [1991] eKLR, the Court of Appeal afirmed that the exercise of selecting an appropriate multiplier is not an exact science but a judicious estimation. The Court stated: “The choice of a multiplier is essentially a question of fact to be determined from the peculiar circumstances of each case. It is not a precise formula but a reasonable projection based on the evidence.” 16. Taking into account the deceased’s youthful age, the informal nature of his occupation, and the uncertainties of life, a multiplier of 25 years is both conservative and appropriate in the circumstances of this case. 3. Dependency Ratio 17. The deceased was survived by a widow and a minor child, and was therefore the primary breadwinner. The Court of Appeal has consistently held that, in such circumstances, a dependency ratio of two- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18459/eng@2025-11-26 3

page 3 of 4

thirds is the conventional and appropriate assessment. In Benson Ngugi v Francis Wainaina & Another [2010] eKLR, the Court expressly restated the position in the following terms: “Where the deceased leaves behind a spouse and children, a dependency ratio of two-thirds is reasonable unless there is evidence to the contrary.” 18. The same principle was earlier articulated by the Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR, where the Court stated that: “ The extent of dependency is a question of fact… In the case of a married man with children, it is usual to adopt a ratio of two-thirds unless evidence shows a lesser or greater dependency.” 19. In view of the evidence that the deceased left a widow and a minor child, and guided by established Court of Appeal authority, the trial court’s adoption of a dependency ratio of two-thirds was appropriate and is hereby afirmed. 4. Law Reform Act Awards 20. In assessing the awards under the Law Reform Act, the learned trial magistrate relied on Masonik & Another v Cheruiyot (Civil Appeal No. 113 of 2019) and Crown Bus Services Ltd & Others v Jamila Nyongesa & Amida Nyongesa. 21. In cases where death occurs shortly after the accident, awards for pain and suffering typically fall between KES. 20,000 and KES. 100,000, and the award of KES.70,000 therefore lies within acceptable limits. Similarly, the award of KES. 100,000 for loss of expectation of life accords with the widely applied conventional amount. I therefore find no basis for interfering with the awards under these two heads. Disposition 22. In the circumstances of this appeal, the only aspect of the trial court’s assessment that warrants interference is the multiplicand of KES.20,000, which was not supported by evidence. The multiplicand is accordingly set aside and substituted with the applicable statutory minimum wage of KES. 7,544.65. 23. The remaining awards, namely pain and suffering, loss of expectation of life, and special damages are confirmed to have been properly assessed and are hereby afirmed in full. 24. As the appeal has succeeded only to the limited extent of revising the multiplicand and the consequential award for loss of dependency, and the Respondents have substantially retained the remainder of the awards made in their favour, I consider this an appropriate case for each party to bear their own costs of the appeal. DELIVERED AT NYAMIRA THIS 26THDAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant - Muyuka for Ngaywa & Kibet Partner LLP For Respondents - Ms. Kusa for Khan & Associates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18459/eng@2025-11-26 4

page 4 of 4