1.This appeal arises from the judgment of Karatina Principal Magistrate in civil suit No 66 of 2019 delivered on April 27, 2021 where the appellant claimed general and special damages. The court found the respondents 100% liable and entered judgment in favour of the appellants for the sum of Kshs 2,731,126/-.
2.Dissatisfied with the judgement the appellants lodged the instant appeal citing 4 grounds of appeal in their memorandum of appeal which can be summarized as follows:-a.The learned trial magistrate erred both in law and in fact in finding that the net pay of the deceased was Kshs 28,724.25/- and not Kshs 82,179/- in making an award under dependency under the Fatal accidents Act consequently arriving at the wrong multiplicand;b.The learned magistrate erred in law and in fact in failing to appreciate that the only deduction to be made for the gross pay are only statutory deductions namely NHIF, NSSF and PAYE.c.The learned trial magistrate erred in law and in fact in failing to appreciate their submissions on the multiplier of 13 years whereas the respondents did not address it at all.
3.The respondents stated that they filed a cross appeal dated November 29, 2021. Such record was traced in this file. On December 23, 2021, the court made a note to the effect confirming that no cross-appeal had been filed by the respondents.
4.By consent, parties put in written submissions for disposal of the appeal.
14.Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd & others  1EA 123:
15.It was also held in Mwangi v Wambugu  KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.
17.Therefore this court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.
Whether The Appeal Has Merit.
18.The respondents claim to have filed a cross appeal vide a memorandum of appeal dated July 21, 2019 and filed in court on July 25, 2019. This matter came up for hearing on the respondents application for stay of execution dated December 14, 2021 on December 23, 2021. In their application, the respondents state that they filed their cross appeal dated November 29, 2021 after they found out that the appellants had already lodged an appeal. The court on December 23, 2021 rendered its decision and held that there was no existence of an appeal on record. Notably, the respondents never made any mention of their appeal when the appeal was been admitted for hearing. As such, there be no cross appeal on record and the since the same was not admitted to hearing, the court shall focus on the appeal dated May 21, 2021.
20.The appellants, argued that the trial court erred by applying the wrong multiplicand and multiplier thus the award of loss of dependency was inordinately low.
21.In the assessment of damages for loss of dependency, the trial court applied a multiplicand of Kshs 28,724.25/- as the deceased’s net pay based on the payslips. The trial court stated that the net salary is what would have been used by the deceased to manage his family and not the gross salary. The record of appeal shows that the appellants attached three pay slips for deceased’s salary for the months of August, September and October 2018.
22.A perusal of the said pay slips reveals that the deceased’s basic salary was Kshs 62,524/- .The statutory deductions as contained in the payslip are PAYE at Kshs 23,160/- NHIF at Kshs 1,700 which comes to a total of Kshs 24,860. The other deductions are Mwalimu Sacco Kshs 47,370, pension contribution Kshs 4,689/-, DeKUT benevolent welfare Kshs 100 and Kusu-Dekut chapter Kshs 625/-which total to Kshs 52,784.55/-. These deductions do not amount to compulsory statutory deductions as they are either in the form of savings or loan repayments, which ought not to be factored in when determining a multiplicand. This was enunciated by the Court of Appeal in the case of Mary Osano (personal representative of Charles Otwori Ogechi (Deceased) v Simon Kimutai  eKLR where the Court of Appeal stated:-
23.As outlined, the total statutory deductions amount to Kshs 24,860/- which when deducted from the gross pay would amount to Kshs 69,509/-. Accordingly, the correct multiplicand is Kshs 69,509/-.
24.On the issue of the multiplier, the appellants have argued that the learned magistrate erred in law by adopting a multiplier of 9 years instead of 13 years. The appellants argue that the deceased was 55 years old and a tutor at Dedan Kimathi University. The appellants further contended that the deceased would have retired at the age of 70 years and therefore the court ought to have adopted a multiplier of 13 years. The respondents do not dispute the multiplier used by the court and submit that it is sufficient and adequate as the retirement age in Kenya is 60 years for public servants.
25.The trial court was of the view that since the deceased was working as a tutor in a private university, he would have worked beyond 60 years for another 5 years and thus adopted a multiplier of 9 years.
27.The deceased died at the age of 55 years. It was not in dispute that the deceased worked as a tutor in the Department of Electrical and Electronic Engineering at Kimathi University. There was no letter of appointment produced to show the deceased’s retirement age. The payslips attached have no such information. I have looked at the Universities Act No 42 of 2012 which provides:-The deceased having been a tutor at the university would have retired at the age of seventy (70) years. As such, the court ought to have adopted the age of 70 as the retirement age. The multiplier therefore ought to have been higher than nine (9) years. Taking into consideration the uncertainties of live, I hereby adopt (13) years as the multiplier based on the fact that at the time of death, the deceased would have worked for another fifteen (15) years.
28.As for the multiplicand the court adopted the net pay of Kshs 28,724.25ct. The appellant argues that the multiplicand of Kshs 81,509/- ought to have been applied. The three payslips produced show that a number of deductions were made from the basic pay of Kshs 62,524/-. The net pay was the take home after the statutory and Sacco deductions as well as loan repayments. Using the net pay to compute loss of dependency was wrong in principle because the house allowance which was an entitlement was not factored in. The correct mode of computation is to remove the statutory deduction from the basic pay and add the house allowance. This formular gives a multiplicand of Kshs 69,509/- which in my view ought to be applied.
29.As for the monthly commuter allowance of Kshs 12,000/-, this benefit was provided to facilitate the deceased to travel to and from his work station. I am of the considered view that this allowance should not be included in computation of the loss of dependency.
30.The multiplicand adopted by the learned magistrate was based on the wrong principles and is hereby set aside and substituted with Kshs 69,509/-.
31.Consequently the damages for loss of dependency are computed thus:-
32.The award on loss of dependency by the court of first instance is hereby set aside and substituted with Kshs 7,228,936/-. The other items of damages in the judgement of the learned magistrate remain undisturbed. The damages payable to the appellant by the respondents are summarised as follows:-Ksha.Loss of dependency 7,228,936b.Special damages 62,980c.Pain and suffering 500,000d.Loss of expectation of life 100,0007,891,916=======
33.The appeal is therefore partly successful.
34.The appellant is awarded the costs of this appeal
35.It is hereby so ordered.