The Respondent’s Submissions.
19.The Respondent urged this court not to interfere with the award. The Respondent submitted that the evidence that the deceased was a welder was not controverted and that welding was a skill which required training. That a welder could not be classified as an unskilled labourer. That the trial court was correct in adopting the multiplicand of Kshs 20,000/=. She relied on Richard Matheka Musyoka & another vs Susan Aoko & another (suing as the administrators as litem of Joseph Onyango Owiti (Deceased)) (2016) eKLR. The Respondent submitted that even if the court was to resort to the applicable regulation of wages, it should use the Regulation of Wages (General Amendment) Order 2018 where a welder was classified as earning between Kshs 18,845/= to Kshs 27,024/= and thus the multiplicand of Kshs 20,000/= adopted by the trial court was within the range and could not be said to be too high.
20.It was the Respondent’s submission that the multiplier of 25 years was appropriate. That the deceased died aged 29 years. It was the Respondent’s submission that the deceased was not in formal employment and that his retirement age could not be limited to 60 years. She relied on Mildred Aori Odunga vs Hussein Dairy Limited (2010) eKLR and Janet Syokau Okoye (legal representative of the estate of Julius Mutune) vs James Ithae Mathendu (2016) eKLR.
21.The Respondent submitted that the Appeal lacked merit and urged the court to dismiss it with costs as there was no basis to fault the court’s finding on quantum.
22.I have gone through and carefully considered the Record of Appeal dated 21st October 2020, the Appellant’s Written Submissions dated 6th March 2023 and the Respondent’s Written Submissions dated 9th March 2023 and the only issue for my determination was to determine the amount of damages payable to the Respondent
23.For this court as an appellate court to interfere with the award by the trial court, it must be convinced that the trial Magistrate acted upon some wrong principle of the law or that the award was extremely high or extremely low so as to make it erroneous. The same was espoused in the case of Gitobu Imanyara & 2 Others vs. Attorney General (2016) eKLR, where the Court of Appeal held that:-
24.In regard to the pain and suffering, the trial court awarded Kshs 10,000/=. The Police Abstract produced by PW2 (No. 65597 CPL Daniel Ngeiywa) and marked as P.Exh 1 stated that the accident occurred on 11th February 2018 at around 12.29 p.m. The Post Morten Report produced by PW1 (Nancy Atieno Onyango) and marked as P.Exh 6 indicated that the deceased died on 11th February 2018 at around 4 p.m. The same was supported by the Death Certificate that was produced by PW1 and marked as P.Exh 2 which indicated that the date of death was 11th February 2018. It was therefore clear that the deceased died on the same day which means his pain was not prolonged.
25.In addition to the above, both parties did not submit under this head and it is my conclusion that they did not object to the trial court’s award of Kshs 10,000/= for pain and suffering. I therefore adopt the award of Kshs 10,000/= awarded by the trial court and I am guided by the persuasive case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another (2017) eKLR, where Nyamweya J. (as she then was) held that:-
26.On the issue of the loss of expectation of life, the trial court awarded Kshs 100,000/=. Both parties did not submit under this head and it is my conclusion that they did not object to the trial court’s award of Kshs 100,000/= for pain and suffering. I therefore adopt the award of Kshs 100,000/= awarded by the trial court and I am persuaded by the case of Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (suing as the Legal Administrator of the estate of the late Robert Mwangi) (2019) eKLR where Muchemi J. stated:-
27.On the issue of loss of dependency, Section 4 of the Fatal Accidents Act provides as follows:-
28.The claim for loss of dependency constitutes the multiplicand, the dependency ratio and the multiplier. (See Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased)  eKLR).
29.Nancy Atieno Onyango (PW1) testified upon cross examination that the deceased worked as a welder and would earn Kshs 20,000/= per month. I have gone through the trial court proceedings and there was no evidence on record to sustain that claim. It was evident that the deceased’s income was unknown. In such circumstances, courts are minded to use the minimum wage as the base income when calculating the loss of dependency.
30.The Court of Appeal in the case of Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) vs Hellena Wanjiru Rukanga (2020) eKLR held that a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained. It stated:-
31.On the failure to have documentary evidence as proof of income, the Court of Appeal in the case of Jacob Ayiga Maruja & Another vs Simeon Obayo (2005) eKLR addressed itself as follows:-
32.As I have earlier indicated, PW1 stated that the deceased worked as a welder. Because the accident occurred on 11th February 2018 I will use the Regulation of Wages (General) (Amendment) Order, 2017 which came into force on 1st May, 2017. The Appellant proposed the amount of Kshs 5,436/= as the multiplicand and the Respondent stated that the trial court was correct in awarding the Kshs 20,000/=. The Respondent further stated that if the court was inclined to use the Regulation of Wages (General Amendment) 2018 then the multiplicand should range between Kshs 18,845/= to Kshs 27,024/=.
33.It is salient to note that the Regulation of Wages (General Amendment) 2018 is not applicable in this case as it came into force on 1st May 2018, two or more months after the accident herein happened.
34.I find that the deceased being a welder, he was classified under Artisan Grade 3 in the Regulation of Wages (General) (Amendment) Order, 2017. It is unknown where the deceased worked but from the pleadings, the accident along Kaplong – Bomet road in Bomet County now is classified as a former municipality. Doing the best I can, I find that the multiplicand to be Kshs 20,166.80/=
35.The trial court used a multiplier of 25 years. The Appellant urged this court to adopt a multiplier of 20 years while the Respondents stated that the multiplier of 25 years that the trial court adopted was proper. In the case of Roger Dainty vs Mwinyi Omar Haji & another (2004) eKLR, the Court of Appeal held that:-
36.Taking into account that the deceased was not employed and was engaged in the business of welding, I find the trial court’s adoption of 25 years as reasonable.
37.On the issue of the dependency ratio, the deceased had four dependants, a widow and three children who were aged between 2 years to 6 years. This was a young family and it is reasonable to state that the deceased would spend 2/3 of his earnings to support his family. I am persuaded by the case of In Gordon Ouma Sunda & Another vs Adan Abdikadir Omar & Another (2019) eKLR, where Cherere J. stated as follows:-
38.In summary therefore, the loss of dependency comes to Kshs 20,166.80 X 12 X 25 X 2/3= Kshs 4,033,360/=
39.With regard to Special Damages, the Respondent stated that they had incurred Kshs 20,000/= as legal fees to procure the Letters of Administration ad litem. They produced the receipt and the same was marked as P. Exh 3. I find that the Respondent has proved this expenditure.
40.The Respondent testified that she had incurred Kshs 50,000/= as funeral expenses. They also stated that they could not keep the receipts because they were concerned with giving the deceased a befitting send off. Section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows:-
41.In the case of Premier Dairy Limited vs Amarjit Singh Sagoo (2013) eKLR , the Court of Appeal stated that:-
42.Similarly, the Court of Appeal, in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited (2016) eKLR, stated that:-
43.Guided by the precedents above, it is my finding that an award of Kshs 50,000/= for funeral expenses would be reasonable. In totality, it is my finding that the Special Damages awardable are Kshs 70,000/=
44.I have noted that the trial Magistrate subtracted Kshs 110,000/= being the award for pain and suffering and loss of expectation of life. I suppose this was done as it was seen as a duplication of awards under the Fatal Accidents Act and the Law Reform Act. The Court of Appeal has been clear on this issue that a party who had sued under the Fatal Accidents Act still had the right to sue under the Law Reform Act in respect of the same death. In the case of Hellen Waruguru Waweru (suing as the legal representative of peter Waweru Mwenja (deceased) )vs Kiarie shoe stores limited (2015) eKLR, the Court of Appeal stated:-
45.The above authority has therefore put paid the Appellant’s submission on double compensation.
46.The issue of liability was not contested. The trial court found liability at 60:40 in favour of the Respondent. I see no reason to interfere.
47.In light of the foregoing, the amount awarded to the Respondents is as follows: -i.Pain and Suffering Kshs 10,000ii.Loss of expectation of life Kshs 100,000iii.Loss of dependency Kshs 4,033,360Kshs 4,143,360Less 40% Contribution Kshs 1,657,344Kshs 2,486,016Add Special Damages Kshs 70,000Total Kshs 2,556,016.
48.In the final analysis, the Appeal dated 26th November 2019 fails in totality and is dismissed. The amount awarded to the Respondent is increased from Kshs 2,412000/= to Kshs 2,556,016/=
49.The Respondent is awarded the costs of the Appeal while the costs of the suit shall remain as awarded by the trial court.