General Cargo Services Ltd v Everlyn Jeptum Rutto & 1 other

7. Liability was agreed by consent between the defendants at 10% and 90% respectively. 8. On award on damages the trial court made the following awards: 9. i. Pain and suffering at Ksh 50000/=. ii. Loss of expectation of life at Ksh 100,000/=. iii. Loss of dependency – 2/3 x12 x 14 x 35910 = Ksh 4,021,920/=. iv. Special damages - Ksh 250. v. Plus, costs and interest and court rates. The appellant (the 2 nd defendant in the subordinate court ) brings this appeal on the following grounds:1. That the Learned Senior Resident Magistrate erred in awarding to the Plaintiffs (the 1st Respondent herein) a sum of Shs.4,021,920.00 for loss of dependency under the Fatal Accident Act which said sum is so excessive as to amount to an erroneous estimate of the damages payable to the Plaintiff. 2. That the Learned Senior Resident Magistrate erred in adopting the wrong principals of law whilst awarding sum of Kshs. 4,021,920.00 for loss of dependency under the Fatal Accidents Act. 3. The Learned Senior Resident Magistrate erred in calculating the award for loss of dependency under the Fatal Accident Act by adopting the Gross salary of the deceased (i.e., Shs.37,072.00) when there was clear evidence before him in the way of a pay slip from the Department of Defence printed on 25th October 2007 indicating the deceased earned a net salary of Kshs. 19,847.80. 4. The Learned Senior Resident Magistrate ought to have calculated the award for loss of dependency under the Fatal Accidents Act by using the net salary of Shs.19,847.80 being the amount of the deceased salary after all lawful deductions and not Kshs. 35,910.00. 5. That the Learned Senior Resident Magistrate erred in law and in fact in coming to a finding that the only dependants of the deceased were his two wives and his minor children namely the Nelly Chepchumba daughter aged 16 years, Joan Chepkosgei daughter aged 13 years, Viola Chebichi daughter aged 10 years and Enoch Kiplimo son aged 5 years. 6. That the Learned Senior Principal Magistrate erred in law and in fact in not coming to a finding that the three children of the deceased namely Edward Kiptanui Rutto aged 24 years, Bheapian Chepkemboi aged 21 years and Sophia Chelimo aged 19 years as per the particulars given in paragraph 7 of the plaint dated 10th December 2008 are adults and consequently capable of looking after themselves and were not dependants of the deceased. 7. That the Learned Senior Resident Magistrate erred in awarding special damages of Kshs. 56,700.00 to plaintiff when there was no documentary evidence adduced before him in support thereof. 8. That the Learned Senior Resident Magistrate erred in law and in fact in making awards under the various heads by failing to take into account that the general damages awarded to the plaintiff would be invested to earn interest. If the Learned Senior Resident Magistrate had https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6463/eng@2026-04-20 2

page 2 of 5

borne that factor in mind it is reasonably possible that he would have awarded a lesser amount to the plaintiff under each head. 9. That the Learned Senior Resident Magistrate erred in law in failing:a. To appreciate the significance of the various facts that emerged from the evidence of the plaintiffs’ witnesses. b. To consider or properly consider all the evidence before him and/or. c. To make any or any proper findings on the aspect of quantum of damages on the evidence before him. 10. The appellant seeks that the appeal be allowed and the Judgment of the lower court be set aside and substituted/varied appropriately. 11. I have carefully considered the record, the submissions by both counsels here and below and the issues that arise for determination are:1. Whether the plaintiff established dependency in the subordinate court. 2. Whether the trial court ought to have applied the global sum approach instead of the multiplier approach in determining the General Damages. 3. How much of the deceased’s income ought to have been applied as the multiplicand? 4. Whether the awards for pain and suffering, loss of expectation of life were excessive and should be varied. 5. Who should have costs? 12. On the 1st issue – it is submitted by the appellant that dependency must be proved by way of evidence – that the plaintiff did not prove that she was the wife of the deceased or not she and the children were depending on the deceased. 13. The court was referred to section 4(1) of the Fatal Accidents Act, Cap 32 Laws of Kenya to the effect that actions are brought for the benefit of “the wife, husband, parent, children, of the person whose death was so caused”. The court was also referred to Rahab Wanjiru Nderitu vs Daniel Muteri & 4 others [2016] eKLR for the proposition that a party claiming to be a wife had to prove that fact – because any person with a beneficial interest in the estate of a deceased person can apply for letters of administration. That if indeed the plaintiff in that case was a widow – she could have produced a Marriage Certificate or chief’s letter to confirm customary marriage, and the children’s documents e.g., baptismal/school certificates because these were not produced the court declined to make an award for loss of dependency. 14. The court is also referred to Tim Sales Ltd vs Harun Thuo Ndung’u [2010] eKLR that failure to produce certain evidence raises the inference that of the evidence was produced it would have negated the plaintiff’s case. 15. On this issue, it is submitted for the respondent that a letter from the D.O Cherangany dated 7/12/2007 stating that the deceased was survived by 2 wives and 7 children 4 of whom were minors, was produced. It is also submitted that the applicant conceded to 2/3 of dependency before the subordinate court. 16. I have perused the Record of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6463/eng@2026-04-20 3

page 3 of 5

17. There is a letter from the District Officer Cherangany to the District Commissioner Trans Nzoia listing those who survived the deceased. The plaintiff/respondent relied totally on the letter from the D.O as proof of dependency. The learned trial court was satisfied that the letter from the D.O was sufficient proof of the fact that the deceased was married, and had 7 children. 18. I noted that the authority cited to this court – Rahab Wanjiru Nderitu was not cited before the subordinate court – and hence the subordinate court cannot be faulted for not considering something that was not placed before it. 19. In those days , the letter from the chief was key in determining the survivors of a deceased person especially public servants . A request would come from the relevant headquarters through the District Commissioner seeking a confirmation as to who the survivors of a deceased civil servant were and more often than not the Ministry / Public Trustee would act on that information. In this case it even emerged that the deceased had more than one wife. 20. The trial court had no reason not to believe that information and I find no reason to interfere with the court’s finding on those facts . 21. On quantum – the appellant submitted for global sum of Ksh.1,000,000/= be proceeded to cite an authorities that applied the multiplier approach. 22. The global approach would be applied if the income was unknown. In this case there was a pay slip with a known ascertainable income 23. The appellant argued that the deceased only took home Ksh 19,847.80 and that was the amount that ought to have been used in the calculation of the loss of dependency. 24. I observed that the pay slip bears a basic salary – rent allowance, cleaning material allowance, Meal cash allowance, Gas & electricity allowance : Total earnings were Ksh 37,072. There were deductions for bank loans, GOK rent. PAYE, and contribution to Armed Forces – total being 17,229 25. The trial court was referred to Kiarie Shoes Stores Ltd vs Hellen Waruguru Waweru [2013] eKLR where the court determined that multiplicand would be the take away salary as at the time of the accident. The plaintiff submitted that the only deduction that could be considered was the PAYE of Ksh 1162 but that loan deductions were advance payments to him which he used for the upkeep of his dependants. 26. The trial court applied a multiplicand of Ksh 35910/= without making any finding on these other deductions. 27. The decisions referred to is persuasive as to the multiplicand. I am of the view that each case could provide unique particulars. One issue of loss of dependency is what income would the deceased have applied on his family. 28. Reading the pay slip I saw that there were some allowances that were specific to the deceased – cleaning materials, and meal cash allowance; together with the statutory deduction – all coming to a total of Ksh 9,602. These are the sums I would deduct from the income to get a figure to calculate loss of dependency. It leaves a sum of Ksh 27,470 as the multiplicand. Loss of dependency works out as Ksh. 27,470– 27,470 x 14 x 12 x 2/3 -3,076,640. 28. it is also clear from the awards that no sum of 56,700.00 was awarded in special damages to the respondent as the only special damages awarded was Ksh 250. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6463/eng@2026-04-20 4

page 4 of 5

The other heads awards are within the standard: for pain and suffering , the deceased had 70% burns. He must have gone through a lot of pain and the amount have been higher. 29. In the circumstances the appeal succeeds to that that limited extent and the judgment of the subordinate court is set aside and substituted to that extent. The award then is : a. Liability: 10:90 between the defendants b. Pain and suffering at Ksh 50,000. c. Loss of expectation of life at Ksh 100,000. d. Loss of dependency 2/3 x12 x 14 x 27,470 = Ksh 3,076,640 e. Special damages Ksh 250 Total Ksh3,226,890 f. Plus, costs and interest and court rates here and below. Orders accordingly JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF APRIL 2026. MUMBUA T MATHEKA JUDGE CA Chrispol Musyoki holding brief for Gor for appellant Muindi for respondent Musyoki: We seek stay for 30 days. Muindi: No objections Court: Stay for 30 days granted. MUMBUA T MATHEKA JUDGE 20/4/2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6463/eng@2026-04-20 5

page 5 of 5