5.The appellant’s counsel submitted that the trial court failed to exercise its discretion fairly by taking into account irrelevant factors and awarding quantum of Kshs. 3,072,000/= as loss of dependency. That the same was the main contention as it was inordinately high and excessive. Further, that the trial court used a multiplier of 16 years for 44-year-old, multiplier of Kshs. 24,000/= without proof and dependency ratio 2/3.
6.The appellant counsel submitted further that it had been pleaded in the plaint that the deceased was a contractor and he earned Kshs. 3,000/=. That however, PW1 testified that the deceased was working as a painter but no evidence was adduced to prove the earnings. Therefore, that the trial court erred in law and in fact by adopting a multiplicand of Kshs. 24,000/= without any proof.
7.It placed reliance on case of Mwanzia V Ngalali Mutua and Kenya Bus Services (Msa0 Ltd & Another as quoted in Jackson Chege Kamau & Another v James Theuri Wachira (Suing as the Administrator of the Estate of John Mwaniki Theuri (Deceased)  eKLR, where the court held that the multiplier approach was only practical where factors such as amount of annual or monthly dependency are known.
8.The appellant’s counsel went on to submit that in the absence of proof of earnings, the trial court should have used a minimum wage of a general labourer of Kshs. 12,926.50/= as per the Regulation of Wages (General) (Amendment) Order 2017. That the multiplier of 8 years would be reasonable in consideration of vicissitudes of life and therefore the computation of loss of expectation of life would be Kshs. 12,926.50 x 12 x 8 x 2/3 = Kshs. 827,296/=. The appellant’s counsel urged the court to substitute the award of Kshs. 3,072,000/= as damages under the fatal Accident Act with the sum of Kshs. 827,296/=. He also urged the court to allow the appeal with costs in favour of the appellant.
9.The respondents’ counsel submitted that the deceased died at the age of 44 years and was a painter. That the appellant in its lower court submissions submitted under the Fatal Accident Act, while applying the multiplier multiplicand method which approach was also used by the court and it. Therefore, that the appellant could not lay claim that the trial court erred by using a multiplier multiplicand approach yet they supported the same. They draw the court’s attention to the case of Chania Shuttle v Mary Mumbi  eKLR which quoted the case of Jacob Ayiga Maruja & Another v Simeon Obayo CA 167/200, on the principle in awarding multiplicand.
10.The respondents’ counsel submitted further that the trial court did not err in awarding Kshs. 24,000/= for multiplicand which was arrived at by taking into account the fact that the deceased could work for 2 or 3 days a week and earning Kshs. 3000/= per day. That the same translated to 6,000/= a week and Kshs. 24,000/= a month. Therefore, the trial court did not err by adopting the 16 years as the deceased died at the age of 44 years and if he would have worked under the Government regulations then he would have worked up to 60 years. They urged the court to uphold the award under the heading of loss of dependency as was held by the lower court and calculated at 24,000 x 16 x 12 x 2/3= Kshs. 3,072,000/=.
11.Finally, the respondents’ counsel submitted that the trial court awarded Kshs. 46,000/= as special damages which was specifically proven and had a KRA revenue stamp affixed. They urged the court to dismiss the appeal with costs in their favour and to uphold the trial court’s judgment.
Analysis and Determination
12.This being the first appeal, it is this court’s duty under Section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd (1968) EA 123 where Sir Clement De Lestang (V.P) stated that:
13.However, in Peters vs Sunday Post Ltd  EA 424, the Court held that: -
13.I have perused through the entire record of appeal and considered the submissions by counsel for both parties. I note that liability is not contested therefore the only issue for determination is whether the quantum award of Kshs. 3, 072,000/= as loss of dependency was inordinately high in the circumstances.
14.The appellant’s counsel submitted that the trial court awarded quantum of Kshs. 3,072,000/= as loss of dependency which was inordinately high and on arrival of the same used a multiplier of 16 years for a 44-year-old, multiplier of Kshs. 24,000/= without proof and dependency ratio of 2/3. The appellant’s counsel submitted further that the multiplier of 8 years would be reasonable taking consideration of vicissitudes and vagaries of life. He urged the court to adopt a computation of Kshs. 12, 926.50 x 12 x 8 x 2/3= Kshs. 827,296/=.
15.The principles to be considered by an appellate court in deciding whether to disturb the trial court’s assessment of damages were set out by the Court of Appeal for East Africa in the locus classicus Bashir Butt v Khan Civil Appeal No. 40 of 1977  eKLR thus;
13.Further, the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2)  eKLR held that: -
13.Additionally, in the case of Butler v Butler,  KRR 225 the court held as follows: -
13.In the instant case, the bone of contention is in regard to how the trial magistrate arrived at the award under the loss of dependency. The trial magistrate considered Kshs. 24,000/- per month as appropriate. According to the trial magistrate, a multiplier of 16 and 2/3 was an appropriate dependency ratio noting that both parties were in agreement of the same. On the expected years the deceased would have worked, the trial magistrate was of the view that the deceased would have worked up to the age of 60 years. It is not disputed that the deceased was 44 years old at the time of his death.
14.The formulae proposed by Ringera J. (as he then was) in Beatrice Wangui Thairu -Vs- Hon. Ezekiel Barngetuny & Another Nairobi HCCC No. 1638 of 1988 (UR) stated: -
21.According to appellant’s counsel, in the absence of proof of earnings, the trial court should have used minimum wage of a general labourer of Kshs. 12,926.50/=, as per the Regulations of Wages (General) (Amendment) Order 2017.
22.The respondents’ advocate on the other hand submitted that PW1 testified that the deceased was the bread winner of the family, that he used to be a painter and could go to work for three days in a week where he could earn Kshs. 3,000/= a day. That the deceased had worked for 20 years and died at the age of 44 years. Further, that the appellant could not lay a claim that the trial court erred by using a multiplier multiplicand approach without basis yet it also applied the said approach. Reliance was placed in the case of Chania Shuttle v Mary (supra) as quoted in the case of Jacob Ayiga Maruja & Another v Simeon Obayo (Supra).
23.It is only when there is absence of income that the trial magistrate will apply the Regulations of Wages Order as held by Asike-Makhandia J. in Nyamira Tea Farmers Sacco v Wilfred Nyambati Keraita and Another Kisii Civil Appeal No. 68 of 2005  eKLR. In the absence of receipts of income like in this case, I concur with the appellant’s counsel’s submission that the Regulation of Wages (General) (Amendment) Order, 2017 which at the time placed wages for a general labourer at Kshs. 12,926.55 as monthly earning. This will be the multiplicand figure.
24.The deceased was not in employment and therefore there is a possibility that he would have worked for more than 60 years but taking into consideration the uncertainties of life, the trial magistrate was correct to apply 16 years as the multiplier. The dependency ratio is not disputed therefore the amount on loss of dependency will work out as 12, 926.55 x 12 x 16 x 2/3= Kshs. 1,654,598.40/=.
25.The ground on special damages cannot stand as there was evidence enough that the amount was incurred.
26.In the premises, the appellant’s appeal partly succeeds on the issue of the multiplicand. Consequently, the trial court’s judgement on quantum dated April 23, 2019 is set aside and substituted with judgement as follows:a)Pain suffering………………………...Kshs. 20,000.00/-b)Loss of expectation of life………...Kshs. 150,000.00/-c)Loss on dependency……………..….Kshs. 1,654,598.40/-d)Special damages…………………....Kshs 46,300.00/-SUB TOTAL…………………………..….Kshs. 1,870,898.00/-Less 5% contribution………….….Kshs. 93,544.90/-Net Damages…………………….……Kshs. 1,777,353.10/-
27.Interest shall be computed from the date of the judgement of the trial court. Each party shall bear its own costs.