Analysis and determination
13.The first issue in this appeal revolves around liability. The events preceding the accident are that the truck belonging to the appellant but leased to Nokia Company and assigned to DW1 lost control and hit the deceased who was walking along the road. The truck was being driven in a zigzag manner before running over the deceased as narrated by PW-3 who witnessed the accident. This account was not controverted. There is no evidence that the deceased was negligent and thereby causing the accident. It was uncontroverted that the vehicle lost control, went out of the road and hit the deceased who was walking by the roadside. The appellant adduced no evidence of the steps the deceased ought to have taken to evade the accident or mitigate the injuries sustained as a result of the accident.
14.It is trite that there is no liability without fault. The appellant was duty-bound to demonstrate the steps the deceased ought to have taken to evade the occurrence of the accident.
15.It is not controverted that the accident motor vehicle was owned by the appellant. The appellant contended that the vehicle had been stolen and that the person who was purportedly driving at the time was not authorized as the usual driver (DW-1) had allegedly travelled out of the country.
16.There was however no evidence of a formal report made to the police to validate this assertion and for proper investigations to be undertaken on who was driving the vehicle at the time. It was claimed that there was a caretaker over the house at the time the vehicle was allegedly stolen. The said caretaker was however not called as a witness.
17.This court’s attention is also drawn to the accident investigator commissioned by the appellant’s insurer. The investigator is MC C Henry Loss Assessor and Investigators. At clause 10.0 of its report which was produced as exhibit DEX2 by DW1, the investigator states as follows:
18.The investigator doubted the theory propounded by DW1. I have no reason to believe him either in view of the underlined statement that the DW1 managed to submit all documents including the driver’s licence of the so-called unauthorized driver to the insurance company but he could not tell where this person was even for the police to trace him and charge him with a traffic offence. There was no evidence of break into the house of DW1 and the truck keys stolen therefrom or that the unauthorized driver used any other means other than the use of the keys which DW1 allegedly left into his house to drive off with the truck. I find that DW1 was not truthful in his testimony.
19.In sum total, I have considered the argument and I am inclined to find that the defence was not believable. I consequently find the appellant liable for the accident at 100% as found by the trial court.
20.My finding above is fortified by the provisions of section 107(1) of the Evidence Act which provides that:
22.In the circumstances of this appeal, I find that the appellant having introduced the issue of the vehicle having been stolen. The burden of proving the fact lay on the appellant though in the circumstances, the appellant did not adduce sufficient evidence to persuade the court to make such a finding. I therefore find this argument to be implausible and is hereby rejected.
24.As regards the damages awarded for pain and suffering, the appellant proposes Kshs 20,000/= since the deceased died after 24 hours. It is a principle of assessment of damages that the longer the period of pain, the higher the sum and vice versa.
25.The deceased herein was hit at around 7pm on 25th December and passed on the following day around 11.00 am. The justification and the parameters for the award was stated by Majanja, J in Sukari Industries Limited v Clyde Machimbo Juma  eKLR where the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering. On appeal, the court stated:
27.I have examined similar awards by the High Court and I am satisfied that the award of Kshs 20,000/= is reasonable in the circumstances.
28.On loss of expectation of life, the appellants before the trial court proposed the sum of Kshs 50,000/= while the respondent proposed Kshs 140,000/=. After reviewing the authorities supplied by the parties, the trial magistrate found it befitting to award Kshs 100,000/=.There is no dispute the deceased was aged 65 years at the time and of good health. The uncertainties of life however have to be considered while computing damages under this head.
29.The rationale for awarding damages under this head was stated in Benham v Gambling (1941) AC 157 where it was held:
31.Taking all the circumstances into account, I am inclined to affirm the award of Kshs 100,000/= under this head.
32.On the issue of loss of dependency, evidence shows that the deceased was survived by a widow and 3 children aged 12,8 and 4 years respectively. She stated that he worked as photographer of over 30 years earning Kshs 4,500/= per day and variable fee for events. She also testified that the deceased made income from farming in the sum of Kshs 171,000/- per year.
33.There was no formal and or documentary evidence of his earnings. He had ordinarily surpassed his retirement age had he been engaged in formal employment.
35.In arriving at the award of Kshs 438,188/-, the trial court in this case adopted the multiplier of 5 years and the multiplicand of 4,500/= and the ratio of 2/3.
36.Given the fact that production of formal documents is not the only proof of income as stated in Jacob Ayiga Maruja & another v Simeon Obayo  eKLR, I find the adoption of the multiplicand and the multiplier to be unsafe in the circumstances for want of evidence in support thereof.
37.The circumstances under which the multiplier approach would be applicable was summarized by Ringera, J in Marko Mwenda v Bernard Mugambi & another Nairobi HCCC No 2343 of 1993 where he stated:
38.As earlier stated, the fact of the deceased’s earnings, net expenditure and the length of dependency being unknown, or rather having not been tabled, the deployment of the method was impractical.
39.Accordingly, I find and hold that a global approach was appropriate in the circumstances and as established by case law, I find an award of Kshs 100,000/- in the circumstances to be appropriate and sufficient in the circumstances.
40.The trial court similarly awarded Kshs 20,000/- in special damages. This sum was awarded as sums for obtaining letters of administration. Two receipts were produced in court and were not objected to by the appellant. As such, I affirm final analysis, I make the following orders:
41.I affirm judgment on liability. The award of damages is interfered with only under the head of pain and suffering and loss of dependency.Thus:Liability 100%Damages for pain and suffering Kshs 20,000/=Loss of expectation of life Kshs 100,000/=Loss of dependency Kshs 100,000/=Specials damages Kshs 20,000/=Total Kshs 240,000/=
42.Since the appeal is partially successful on quantum of damages, only, each party shall bear their own costs on the appeal.