A. Case backdrop
1.By plaint dated September 4, 2014, the respondents sued the appellants claiming damages from an accident which occurred on November 25, 2012 claiming the life of Emmaculate Chepkirui (hereinafter the deceased). It was pleaded that the appellants’ motor vehicle registration number KBQ 323M rammed onto motor vehicle registration number KAX 862W in which the deceased was travelling in and the respondents therefore attributed the accident to the appellants’ negligence.
2.Upon service, the appellants duly entered appearance and filed their statement of defence denying the occurrence of the accident, the fact of ownership of motor vehicle registration number KBQ 323M and or the negligence attributed to the 3rd respondent. In the alternative, the appellants attributed the occurrence of the accident, if any, to the driver of motor vehicle registration number KAX 862W.
3.The trial court thereafter proceeded to hear the matter in which evidence was adduced as follows;
4.PW-1, Moses Kipyegon Cheruiyot stated that he was informed by his wife of the accident and went to Jaramogi Oginga Odinga Teaching and Referral Hospital where he identified the body of his daughter who had died on the spot. That at the time of accident, his daughter was 19 years and a first-year student at university pursuing a bachelor of laws degree. He blamed the appellants’ driver for the accident.
5.Liability was eventually settled by consent of the parties at 70:30 in favour of the respondents against the appellants.
6.The parties’ respective cases were then closed and the trial magistrate proceeded to make awards on quantum under the different heads as follows;i.Pain and suffering Kshs 20,000/=ii.Loss of expectation of life Kshs 120,000/=iii.Funeral expenses Kshs 40,000iv.Loss of dependency Kshs 4,000,000/=Sub-Total Kshs 4,180,000/=Less 30% contribution Kshs 1,254,000Total Kshs 2,926,000
7.The appellants were aggrieved by the award on quantum and moved this court via memorandum of appeal dated October 6, 2018 raising the following grounds;i.The quantum of general damages in respect of lost dependency is inordinately high, erroneous, oppressive and punitive and amounts to a miscarriage of justice.ii.The learned trial magistrate ignored and or paid lip service to the appellant’s submissions and especially the precedents cited therein.iii.The learned trial magistrate erred in law when he held without any reference to any precedent or legal basis that the appropriate award was Kshs 4,000,000/=.iv.The learned trial magistrate erred in law and fact in making an inordinately high award without considering and applying the principles enunciated in the authorities referred to him or to the evidence before him, or taking them into account.v.The learned trial magistrate applied the wrong principles in the assessment of the award which was arbitrary, unjust and was high as to amount to an error in law in this particular case.
D. Analysis and determination.
14.The duty of the first appellate was stated in Peters V Sunday Post Limited (1958) EA 424 where Sir Kenneth O’Connor stated as follows:
15.Looking at the grounds of appeal and the submissions, it is clear to this court that the appellant is aggrieved with the quantum of damages awarded more specifically the award under the head of loss of dependency.
16.The evidence on record shows that the deceased was aged 19 years old, unmarried and had no child left behind. Clearly, she was unemployed and therefore had no income upon which the trial could form a basis for calculating the award under that head.
10.Dependency is a matter of fact and must be proved by evidence yet no evidence was tendered before the trial court to prove dependency. In the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another  eKLR the court rendered itself as follows:-
17.It is trite law that an award of damages is a discretionary exercise by the trial court and the appellate court is only entitled to interfere with such an award when it is shown that the same was arrived at in ignorance of material facts and or based on no evidence at all or that the award is obviously excessively low or high as to form an erroneous estimate of the same. This legal position has been pronounced in a number of judicial authorities for instance in Butt v. Khan  KLR 349 the court held that:
20.For purposes of this appeal, the above principles will guide me while bearing in mind that no amount of money can replace a shattered and battered frame and what the courts strive to do in the circumstances is to award sums consonant with judicial precedent that can be sustained by the economy. In H West & Sons Ltd vs Shepherd (1964) AC 326 at Page 364, the court stated:-
21.There is debate as to whether in the circumstances of this case, the proper approach would have been an award of global sum or the use of the multiplier approach. The appropriate circumstances to deploy either approach was discussed in Albert Odawa Vs Gichimu Gichenji, (2007) eKLR where the court held that:
22.The trial court while appreciating conflict posed by the 2 approaches observed;
23.I am also of the view that the facts presented by the suit was proper for deployment of the global sum approach as opposed to the multiplier approach. The remaining issue then is what sufficed in the circumstances. The appellant while relying on a number of authorities urged the court to award kshs 2,000,000 while the respondents urged the court to adopt a multiplier approach and award kshs 44,550,000/=. I must say that the respondent’s proposed amount was extremely high in the circumstances.
24.Having determined that the global approach was the best in the circumstances, I have considered similar authorities in support of this award bearing in mind the deceased’s age, the level of dependency and the fact that she was a student at the material time and was not earning any income.
25.I find that the appellants’ authorities resonate well with the prevailing awards and I proceed to award the respondents the sum of Kshs 2,000,000/= under the head of loss of dependency.
26.Consequently, the trial court’s award under the head loss of dependency is hereby set aside and substituted with the sum of Kshs 2,000,000/= while the other heads as awarded by the trial court remain intact.
27.As the appeal is partially successful to the above stated extent, each party shall bear its own costs on the appeal while the respondent is awarded costs in the subordinate court.