Crown Petroleum v Timothy Anyango Mapesa & 1 other

5. i. The learned magistrate erred in holding the Appellant 100% liable. ii. The trial court applied a multiplier approach without proof of income or dependency. iii. The sum awarded for loss of dependency was inordinately high. iv. The magistrate relied on speculative evidence regarding the deceased’s earnings, marital status, and dependants. The appeal turns on two issues, namely; whether the trial magistrate erred in holding the Appellant wholly liable and whether the award on loss of dependency was based on wrong principles, misdirection, or was inordinately high to warrant appellate interference. Analysis and Determination Liability 6. This court has already addressed and upheld the trial court’s decision on the issue of liability in the lead file being Naivasha HCCA E040/2024 with directions that judgment in the said file shall apply in this case and all the related cases. I have, in the said judgment, found that the trial court arrived at the correct finding on liability. 7. Accordingly, the trial court’s finding of 100% liability is hereby upheld. Quantum of Damages 8. Both parties cited the controlling authority in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another vs. Lubia (No.2) [1985] eKLR, where the Court of Appeal stated that: “ The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account an irrelevant factor or leaving out a relevant one), or misapprehended the evidence in some material respect, and so arrived at a figure so inordinately high or low as to represent an erroneous estimate.” 9. The above principle was reiterated in Butt vs. Khan [1981] KLR 349, where Law JA held: “ 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 acted on a wrong principle of law or misapprehended the evidence.” 10. The Appellant submitted that the award of Kshs. 2,688,722.40 was inordinately high because proof of earnings of Kshs. 80,000 or Kshs. 30,000 was not produced as there were no receipts or documents to show that the deceased sold cereals or worked as a tailor. The Appellant also noted that there was no proof of age, marriage, or dependency other than a chief’s letter. It was submitted that the trial court applied an unsupported multiplier of 26 years and that the Respondent’s own evidence was contradictory. 11. The Appellant urged this court to adopt the global sum approach in making an award for loss of dependency. 12. The Respondent, on the other hand, maintained that the deceased was a healthy 34-year-old businesswoman earning Kshs. 80,000 per month. It was the Respondent’s case that where earnings https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4172/eng@2026-03-19 2

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are unproven, courts may rely on minimum wages of Kshs. 12,926.55 under the Regulation of Wages (General) (Amendment) Order, 2017. 13. It was submitted that a dependency ratio of 2/3 was appropriate since the deceased supported her husband and two children. The Respondent added that a multiplier of 36 years was reasonable, as supported by the cases of Violet Jeptum Rahedi vs. Albert Kubai Mbogori [2013] eKLR and Julian Njeri Muriithi vs. Veronicah Njeri Karanja & another [2015] eKLR, 14. The Respondent argued that the trial court's award was modest and well within the correct legal principles. Analysis and Determination Loss of Dependency 15. In this case, the only proof of the deceased’s income was oral testimony as no business licences, sales records, receipts or bank statements were produced. I find that this makes reliance on Kshs. 80,000 as monthly earnings from the alleged business speculative. 16. I however find guidance in the position adopted by the Court of Appeal in Jacob Ayiga Maruja & another vs. Simeon Obayo (Suing as the administrator of the Estate of Thomas Ndaya Obayo) [2005] eKLR) where it was held that documentary evidence is not the only way to prove occupation or earnings as oral evidence and other circumstantial material may suffice on a balance of probabilities, though documents are useful where available. In the said case, the court rendered itself 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. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.” 17. Courts have taken the position that where a claimant’s earnings are not strictly proved by documentary evidence, the court is not precluded from making an award for loss of dependency or lost earnings, and may instead adopt the applicable statutory minimum wage as a reasonable guide. This position was affirmed by the Court of Appeal in Jacob Ayiga Maruja case (supra) where the Court held that the absence of documentary proof of earnings does not justify denying a claimant damages, noting that courts must do justice on the basis of available material. 18. Similarly, in Mwanzia vs. Ngalali Mutua & Kenya Bus Services (Msa) Ltd [2004] eKLR, Ringera J. (as he then was) observed that where income is not proved, the court may resort to a global sum or other reasonable estimation. More recently, the High Court in Kilonzi & 2 others vs. Matoi & another [2022] KEHC 15036 (KLR) expressly considered the Regulation of Wages (General) (Amendment) Order, 2017, and accepted Kshs. 12,926.55 as the applicable minimum wage to guide assessment where actual earnings were unproven. The same approach has been adopted in several High Court decisions, including Mercy Wanjiru Nyaga vs. Josphat Kiura & another [2020] eKLR and Oduor vs. Njagi [2024] KEHC, where the courts reiterated that statutory minimum wages provide an objective and fair benchmark in the absence of proof of income. 19. In the present case, I find that the trial court correctly applied the minimum wage of Kshs. 12,926.55. I however find that the deceased’s dependency was not fully proven, and a multiplier of 26 years high in the face of unclear evidence about health, work stability and future prospects. I find a multiplier of 20 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4172/eng@2026-03-19 3

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years more reasonable given the evidential uncertainties. I therefore recalculate the award as follows: 12,926.55 × 2/3 × 20 × 12 = Kshs. 2,070,248. 20. Turning to the Appellant’s claim on double compensation, I note that the same did not form part of the grounds of appeal and cannot be entertained at this late stage. Be that at it may, the law is settled that claims under the Law Reform Act and Fatal Accidents Act are distinct, and while they must be considered together, they need not be mathematically deducted. I am guided by the decision in Pleasant View School Ltd vs. Rose Mutheu Kithoi (2017) eKLR) and Kemfro Africa Ltd vs. Lubia (supra) where it was held that awards under the Law Reform Act need only be considered, not deducted from those awarded under the Fatal Accidents Act. isposition 21. Flowing from the foregoing analysis, I find no basis to interfere with the trial court’s finding on liability, which is hereby upheld in its entirety. However, I am satisfied that the award made under the head of loss of dependency was based on a misapprehension of the evidence and an application of a multiplier that was not fully supported by the record. To that limited extent only, the appeal succeeds. 22. Consequently, the award for loss of dependency is hereby set aside and substituted with an award of Kshs. 2,070,248, while the awards made by the trial court under the other heads of damages remain undisturbed and as follows: a. Loss of expectation of life….Kshs. 150,000 b. Pain and suffering ………….Kshs, 100,000 c. Special Damages…………….Kshs, 273,070 Total …………………………Kshs, 2,523,318 23. In view of the partial success of the appeal, and bearing in mind the circumstances of the case, I direct that each party shall bear its own costs of the appeal, while the costs awarded by the trial court shall remain as ordered. The total award shall attract interest at court rates till payment in full. 24. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF MARCH, 2026. HON. W. A. OKWANY JUDGE 19/03/2026 For Appellant Miss Mwangi For Respondent Ms Keberenge Court Assistant Karani 30 days stay of execution granted File closed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4172/eng@2026-03-19 4

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