Charles Kipyegon Ngetich v Scola Bunyige Alias Scola P John (suing As Personal Representative and Legal Administrator of The Estate of Bunyige Manga - Deceased)

4. The Respondent testified that the deceased was engaged in farming and business earning approximately KES. 25,000 per month but no documentary or corroborative evidence was produced in support of that assertion. The Appellant did not call any evidence. 5. Subsequently, the trial court delivered judgment on 17th September 2025 and awarded damages as follows: KES. 50,000 for pain and suffering, KES. 100,000 for loss of expectation of life, KES. 3,000,000 for loss of dependency and KES. 108,050/= as special damages, totaling Kshs. 3,258,050/= before apportionment on liability at 85:15% which was agreed by consent of the parties. 6. Being dissatisfied with the said judgment, the Appellant filed a Memorandum of Appeal dated 30th September 2025 challenging the assessment of quantum on the grounds that: 7. 1. The trial court erred in adopting an unproven multiplicand of KES. 25,000; 2. The trial court failed to apply the statutory minimum wage; 3. The multiplier of 20 years was excessive; 4. The dependency ratio was erroneous; 5. The award of KES. 3,000,000 for loss of dependency was inordinately high; 6. Special damages were not strictly proved. This Court has considered the pleadings, the evidence on record, the judgment of the trial court, the Memorandum of Appeal, and the written submissions filed on behalf of the parties and identified the following issues for determination: 1. Whether the multiplicand adopted by the trial court was justified or whether minimum wage ought to apply; 2. Whether the multiplier adopted was appropriate; 3. Whether the dependency ratio was proper; 4. Whether the award for loss of dependency was excessive; 5. Whether special damages were strictly proved. 8. As a first appellate court, this Court is obligated to re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not have the benefit of seeing and hearing the witnesses. It is also guided by the settled principles in Kemfro Africa Ltd t/a “Meru Express Services (1976) & another v Lubia & another [1983] KECA 61 (KLR)and Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88)1 KAR 1, that an appellate court will only interfere with an award of damages where it is demonstrated that the trial court acted on wrong principles or that the award is inordinately high or low. 9. Turning to the first issue, namely whether the multiplicand adopted by the trial court was justified, the Respondent asserted that the deceased earned KES. 25,000 per month from farming and business. However, that assertion was not supported by any documentary evidence or by particulars as to the nature, scale or consistency of the alleged income-generating activities. The evidence on earnings therefore remained a bare statement incapable of supporting a reasonable or objective assessment. 10. While it is correct, as held in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR) that documentary proof is not mandatory and courts may rely on oral evidence, such evidence must still be credible and capable of supporting a reasonable estimate. In the present case, the evidence was too bare and unparticularized to meet that threshold. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6657/eng@2026-04-16 2

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11. The position advanced by the Appellant, supported by Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) and Helias Kenya Limited & another v Nalianya & another (suing as the Administrators of the Estate of Felix Wanjala Checheya - Dcd) [2023] KEHC 21398 (KLR), is therefore more persuasive. Those authorities emphasize that where income is not proved by cogent evidence, courts must avoid speculation and adopt an objective standard. The adoption of the statutory minimum wage in such circumstances ensures consistency and fairness. 12. This Court accordingly takes judicial notice of the Regulation of Wages (General) (Amendment) Order, 2022 (Legal Notice No. 125 of 2022), which came into force on 01st May 2022 and was applicable at the time of the deceased’s death in August 2023. Under the Schedule thereto, the minimum monthly wage for a general labourer in “all other areas” is KES 8,109.90, which this Court adopts as the multiplicand. 13. On the multiplier, the deceased was aged 45 years. Guided by Monda v Suji & another (Suing as the Legal Representatives of the Estate of Mathew Okello Ombonya Deceased) [2023] KEHC 2778 (KLR), which underscores the need to take into account the uncertainties and vicissitudes of life, I find that a multiplier of 15 years is more appropriate than the 20 years adopted by the trial court. 14. On dependency ratio, the authorities of Leonard O. Ekisa & another v Major K. Birgen [2005] KEHC 2214 (KLR) and Stephen Mulwa Ngala v Republic [2021] KEHC 9393 (KLR) demonstrate that the ratio is not fixed but depends on the circumstances of each case. The deceased having been described as a family man supporting dependants, a ratio of two-thirds is reasonable and I adopt the same. 15. Applying the foregoing, the loss of dependency is recalculated as follows: KES. 8,109.90 × 12 × 15 × 2/3 = KES. 973,188. The award of KES. 3,000,000 for loss of dependency by the trial court, having been predicated on an unproven multiplicand, was not supported by the evidence on record and amounted to an erroneous estimate of damages. 16. Although the Respondent urged this Court to sustain the award as a global sum, relying on Francis Odhiambo Nyunja & 2 Others v Josephine Malala [2020] eKLR, that authority is distinguishable as it was premised on a firmer evidentiary foundation regarding the deceased’s earnings. In the present case, the absence of a reliable and ascertainable income base renders the application of the multiplier approach unsustainable, and the award as made by the trial court cannot be upheld on that basis. 17. On special damages, the Appellant relied on West Kenya Sugar Co. Ltd v Gabriel Okumu [2018] eKLR and Kennedy Ogendo v Dennis Nyangena [2021] eKLR, which restate the principle that special damages must be specifically pleaded and strictly proved. The record shows that the Respondent pleaded specific items and tendered documentary evidence. The trial court, upon evaluation, awarded only KES. 108,050 being the amount proved. The Appellant did not identify any specific item that was unproved or improperly admitted. I am therefore satisfied that the requirement of strict proof was met and find no basis for interference. 18. The awards for pain and suffering and loss of expectation of life fall within conventional limits and were not shown to be erroneous. 19. From the foregoing analysis, this court makes the following orders: 1. The award of KES. 3,000,000 for loss of dependency is set aside and substituted with KES. 973,188. 2. The awards of KES. 50,000/= for pain and suffering, KES. 100,000 for loss of expectation of life, and KES. 108,050 as special damages are upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6657/eng@2026-04-16 3

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3. The total award shall be subject to the agreed apportionment on liability. 4. Each party shall bear its own costs of the appeal. DELIVERED AT NYAMIRA THIS 16TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant - Ms. Kemuma for Omwenga & Co. Advocates For Respondent – Ms. Nyaenya for M.K.Angasa & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6657/eng@2026-04-16 4

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