11.This being a first appeal, the court is required to re-evaluate the proceedings before the trial court and to come to its determination thereon, while giving allowance that unlike the trial court, it did not have the benefit of seeing and hearing the witnesses.
12.In this cause, Pw1 Julius Irungu Mwangi testified that he was a conductor and that the deceased was his wife. On the January 19, 2015, he was informed that she had hit by a motor vehicle leading to her death and that the appellant was charged and convicted. It was his evidence that she was a business woman earning Kshs 7,000 per month. In cross examination, he stated that she was crossing the road to prevent her child from crossing and was hit in the middle of the road.
13.Pw2 Pc Peter Kinyua stated that the appellant was charged with careless driving which he pleaded guilty to and paid the fine. In cross examination, he stated that the deceased was crossing from left to right in an effort to prevent her child who was opposite side of the road.
14.The appellant Dw 1 John Gichaga, stated that the deceased jumped on the road on the left side, she was anxious to help the child cross.
15.Based on the said evidence the court found the appellant liable at 80%: 20% on the basis that both owed each other duty of care and that the appellant would have slowed down and adopted the minimum wage in assessing the loss of dependency.
16.From the submissions herein, the only issue for determination is whether the trial court was justified in using a multiplier of 38 years? and whether the award of Kshs 50,000 was supported by evidence?
17.It is not disputed that the deceased was aged 22 years and having adopted the minimum wage the same would have worked up to the age of 60 but the court should have given an allowance for the vagrancies of life and having re-evaluated the evidence tendered before the trial court and the submissions therein together with the authorities, I have come to the irresistible conclusion that the court did not take into account all the relevant matters when reaching its award and therefore the award under the heading of loss of dependency was erroneous.
18.I would therefore allow the appeal under this heading and re-assess the same to a multiplier of 32 years, thus loss of dependency is re-assessed to 5,844.20 x 32 years x 12 month x 2/3 =1,496,115.20.
19.On the assessment of pain and suffering based on the authorities tendered before the trial court, I find no fault with the award as the same is with the range of the authorities tendered and therefore shall not interfere with the award.
20.The appellant did not appeal on liability, special damages and loss of expectation of life and neither did the respondent cross appeal on the assessment of loss of dependency and shall therefore not comment on these headings.
21.In the final analysis I will allow the appeal on the heading of loss of dependency which I set a side and substitute with a multiplier of 32 years and affirm the final award as follows:(a)Liability 80%; 20%(b)Loss of expectation of life Kshs 100,000(c)Pain and suffering Kshs 50,000(d)Loss of dependency Kshs 1,496,115.20(e)Special damages Kshs 68,600Total Kshs 1,714,715.20Less 20% Kshs 342,943.04(f)Subtotal Kshs 1,371,772.16
22.The appellant shall be entitled to half the cost of the appeal while the respondent is entitled to the cost at the lower court together with interest thereon from the date herein.And it is ordered.