High Court 7170 of 2026

4. The Appellant submitted that the deceased herein was prior to his death aged 59 years, enjoying a good health, leading a happy industrious and vibrant life, and it is not in doubt that as a result of his abrupt and premature death, his estate has suffered loss and damage. That from the evidence adduced at trial, it is clear that the deceased worked as a security guard prior to his death and hence earned a living. It was equally clear that his wife depended on him for financial support. Taking into account that he was working in the private sector, it is probable that he may work beyond 70years. Taking these factors into consideration, the Appellant submitted that the trial court's award of Kshs.450,000/= was inordinately low under the circumstance and urged this court to substitute the same with an award of Kshs.l,500,000. Reliance was placed on the following authorities in addition to those cited at trial: a. Joseph Maina Kimura v Ann Nkirote Mwaniki (Sued as the Legal Representative and Administrator of the Estate of Silvan Mwaniki Nyamburano - Deceased) [2020] eKLR where an award of Kshs.800, 000 was made on appeal for loss of dependency of a deceased aged 61years. b. Mohammed Huka (suing as personal representative of the Estate of Huka Wako) v Adan Kosi & 2 Others [2017] eKLR where the court in making an award of Kshs.4,000,000 for loss of dependency pronounced himself as follows: "I appreciate that the children of the deceased were deprived of personal parental support and it is never the same when you are left to the estate for care. The deceased would still have earned through his business for another 9 years as he died at the age of 61. Accordingly, I hereby award a global sum of Kshs.4,000,000 for loss of dependency..." c. Loise Wanjiku Kagunda-vs-Julius Gachau Mwangi-Civi1 Case No 142 of 2003 whereby a multiplier of 3 years was used for a person aged 77 years. In the case the court held: "regarding the multiplier, the deceased was 77 years old. The trial judge reckoned that the maximum active age as 80 years and thus applied a multiplier of three years. There is no misdirection in so finding. " 2

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6. 7. Based on the foregoing, the Appellant urged this court to allow the appeal and substitute the award on loss of dependency by the trial court. Respondent’s submissions The Respondent submitted that that a re-evaluation of the quantum award is not necessary for the following reasons that the deceased died on 15th August, 2021 and he was aged 59 years old at the time of his death. In an attempt to have the award upheld the Respondent referred to the case of Dora Mwawandu Samuel (Suing on her behalf and on behalf of the Estate of Samuel Muweliani Jumamosi (Deceased) v Shabir M. Hassan [2021] KEHC 8665 (KLR) in which the appellate court upheld the court’s award for a sum of Kshs.400,000.00 awarded under Loss of Dependency for a 59 year old. While arriving at a decision to uphold the judgment, the court cited the following; “[12] I will agree with the defendants that this will not be a fit case to start calculating figures using multipliers, and multiplicands and dependency ratios based on the age of the deceased who was at an advanced age of 59 years, a global figure for general damages will do ... [13] Following the above decisions in this matter and the age of the deceased at the time of death and that all the alleged dependants are all mature, it will be an absurdity to adopt he multiplier formula in this matter. I will therefore adopt a global figure in the circumstances.” 8. It was submitted that in the instant case, proof of earning was never availed by the Appellant and as such the best approach that the court was to rely on was the global sum approach. The court relied on the global award approach and as such the award of Kshs.450,000.00 is reasonable in the circumstances. 9. The Respondent also referred to the case of Kigaraari vs Aya (198288) 1 KAR 768, as quoted by Kamau J in Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR it was stated as follows :“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the 3

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public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” 10. The Respondent urged this Court to Kshs.450,000.00 under Loss of Dependency. uphold the award of Analysis and Determination 11. It is trite law that assessment of damages is essentially an exercise of discretion, and the grounds on which an Appellate court will interfere with the manner in which a trial court assessed damages relates to issues of an error of principle- Asal –v- Muge & Another (2001) EKLR 202. 12. I have carefully perused the record of appeal, the memorandum of appeal and considered the submissions of parties’ advocates. What I gather for my determination on this appeal is whether the trial court’s global award of Kshs.450,000/= for Loss of dependency was too low. 13. In awarding Kshs.450,000/= for Loss of dependency, the trial Magistrate observed that in the instant case, though it was stated that the deceased was a guard, there was no documentary evidence of his income. Also bearing in mind his advanced age, the trial Magistrate was of the humble view that this would not be a fit case to start calculating figures using multipliers, multiplicands and dependency ratios. A global approach method would be more appropriate. Guided by the case law of Dora Mwawandu Samuel (Suing on her behalf and on behalf of the Estate of Samuel Muweliani Jumamosi (Deceased) v Shabir M. Hassan (supra), the trial Magistrate made an award of Kshs.450,000/= which he considered to be adequate compensation to the deceased’s estate under the head of loss of dependency. 14. A cursory perusal at the record of appeal reveals that the evidence of PW2 in the proceedings is missing at page 4 and therefore I am unable to consider the same. The proceedings at page 5 show that PW3 Roselda Majoni Nyengenye testified that she is the wife of the deceased herein. She adopted her witness statement as her evidence in chief. She stated that the deceased was aged 59 years at the time of his death and was a guard earning Kshs.19,000/= monthly. He left behind 11 children, five of whom were below 18 years and were in school. The deceased would send her money. Unfortunately, she didn’t have any documents which she said were at home. She stated that she didn’t have a marriage certificate but she was the deceased’s wife. I note that page 6 of the proceedings on further cross-examination of 4

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PW3 are also missing from the record of appeal and again I am unable to consider the same. However, I have read the very brief (2 paragraphs) statement by the PW3-Roselda Majoni Nyengenye dated 22nd April 2022 in which she simply stated that she is an adult male of sound mind, wife to the deceased. She did recall receiving a call on 15th August 2921 from a good Samaritan informing her that her husband Sebastian Majoni Nyengenye had been involved in an accident. That she rushed to Shalom hospital where she confirmed that he had passed on as a result of the accident. That her husband was an energetic man who was earning about Kshs.19,000/= from his work as security guard and was the sole breadwinner. 15. PW3 did not in her witness statement say where the deceased was working as a guard, she did not talk about her 11 children and the fact that they were in school and the deceased was paying their school fees. The chief’s letter is illegible and I am unable to establish what it contains but from a strained closer look, the same does not list the alleged eleven children as dependents of the deceased. 16. Further, the Appellant /Plaintiff did not explain why she did deem it necessary to reach out to the alleged deceased’s employer to obtain any document on proof of the deceased’s employment let alone his alleged monthly salary of Kshs.19,000/=. 17. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed Vs Kayuma Mvurya & Another [2017] eKLR as follows:“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.” 18. There was no evidence that the deceased was a guard earning a monthly salary of Kshs.19,000/=. The Appellant did not produce his payslip or a letter from his purported employer which would have guided the court to accept that he was a guard as alleged. In the circumstances, I hold the view that the Appellant did not prove that the deceased was earning the amount alleged he earned as a guard. 5

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19. With lack of proof of earnings, it is my considered view that the trial court did not misdirect itself on the aspect of global award for the loss of dependency. 20. It is not disputed that the deceased was aged 59 years at the time of his demise and was residing at Athi River-Mavoko within Machakos County. His home was in Nanguba Location, Funyula Sub-county within Busia County if the Chief’s letter and the Death Certificate is anything to go by. This shows that the deceased must have been earning as he obviously spent in sustaining himself in Athi River although the amount has not been proved. He was 59 years and would have worked for another 5-6 years if he was in informal employment. It must be noted however that the vicissitudes and uncertainty of life are points of consideration. 21. Considering all the above, I am of the opinion that the global sum of Kshs.450,000/= awarded for loss of dependency by the trial court was adequate compensation. I am also persuaded by the finding in the case of Dora Mwawandu Samuel (supra). I have taken notice that in the said case the judgment was delivered in the year 2021 where the appellate court upheld the court’s award for a sum of Kshs.400,000.00 awarded under Loss of Dependency for a 59-year-old. In the instant case, the judgement before the trial court was delivered in the year 2023 for a deceased aged 59 years old. Therefore, the decision was a perfect comparison on the award of loss of dependency in the circumstances. 22. The upshot is that, I hold this appeal to be lacking in merit and the same is dismissed with costs to the Respondent assessed at Kshs.20,000/=. 23. It is so ordered. This appeal file is closed. JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 15TH APRIL 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 15TH APRIL 2026 6

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