13.As the appeal is on quantum of damages, I reiterate that assessment of damages is generally a difficult task. A Court is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an appellate Court must be slow to interfere with such an exercise of discretion. (See Butler vs. Butler (1982) KLR 277.)
14.The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus: -
15.This position was restated by the Court of Appeal in Arrow Car Limited -vs- Bimomo & 2 others (2004) 2 KLR 101 and also in Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd (2013) eKLR.
16.This Court has carefully read and understood the gist of the appeal, the pleadings, the proceedings, the impugned judgment, the submissions and the judicial authorities referred to by the parties.
17.The two issues which arise for determination in this appeal are as follows: -i.Whether awards under the Law Reform Act and the Fatal Accidents Act amount to double compensation.ii.Whether the trial Court rightly handled the issue of Pain and suffering, Loss of expectation of life, Dependency ratio and the Multiplicand.
19.From the reading of the Petitioners’ Counsel written submissions, it is easily gathered that the Counsel was well aware of the prevailing legal position on this issue. Counsel, rightly so, referred to the Court of Appeal decision in Hellen Waruguru Waweru (Suing as legal representative of the Estate of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Limited (2015) eKLR.
20.However, Counsel only captured part of paragraph 20 of the decision which stated as follows: -
21.A simple reading of paragraphs 19 to 23 inclusive of the above decision reveals the most current legal position on the issue.
22.The said paragraphs are hereunder reproduced verbatim: -
23.Having said as much, and with the guidance of the Court of Appeal in the Hellen Waruguru Waweru case (supra), this Court now finds and hold that awards under the Law Reform Act and the Fatal Accidents Act do not amount to double compensation. The rationale is that from the reading of Section 2(5) of the Law Reform Act, it is the case that the beneficiaries under the Law Reform Act are not necessarily the same as those under the Fatal Accidents Act.
24.A Court is only supposed ‘to take into account’ the award made under the Law Reform Act when assessing damages under the Fatal Accidents Act. To this Court, the trial Court having addressed itself to the awards in both legislations is a clear indicator that the Court was well aware of the guiding legal principle and accordingly applied its legal mind thereto.b.Whether the trial Court rightly handled the issue of Pain and suffering, Loss of expectation of life, Dependency ratio and the Multiplicand.
25.This Court has carefully considered the awards.
26.On the issue of the award on pain and suffering before death, the record has it that the deceased died a day after the accident. The Appellants did not elicit to ascertain whether the deceased was unconscious during the period between the accident and the death or otherwise. If the deceased had been unconscious all along, then he would not have suffered any pain and suffering. An award in such circumstances would be low, if at all any.
27.However, since the record is silent on the state of the deceased from the time of the accident until his death, the presumption is that the deceased suffered pain from until his death.
28.In this case, the deceased died a day later. He must have suffered pain. The award of Kshs. 50,000/= is, hence, reasonable.
29.This Court, likewise, wishes not to disturb the award on loss of expectation of life. There is no doubt a vibrant life was lost. The deceased was aged 44 years.
30.In the English case of Flint vs. Lovell  1 K.B 354, the Court of Appeal held that ‘… in an action for damages for personal injuries, the damages awarded might, in appropriate cases, include a sum for the shortening of enjoyment of life or the lost prospect of an enjoyable, vigorous and happy old age…’
31.Therefore, even in ordinary personal injuries claims, a party may claim for an award of loss of expectation of life in appropriate instances.
32.In this case, the award of Kshs. 100,000/= is reasonable.
33.The Court will now consider the issues of the dependency ratio and the multiplicand together.
34.The manner in which damages for lost years or loss of dependency ought to be arrived at has, by now, been a well-trodden path. Briefly put, where there is evidence of income on the part of the deceased or such income can be appropriately ascertained say for instance through the duly gazetted minimum wages or any other manner as to enable the Court appropriately determine the multiplicand, then a Court is enjoined to undertake the mathematical process of calculating the lost years by inter alia using the multiplicand, the earnings, among other parameters.
35.In instances where it is not possible to ascertain the deceased’s income, say for instance where the deceased was not in any formal employment, business or such-like engagements, a Court is called upon to adopt a globe sum.
36.In Franklin Kimathi Maariu & another vs. Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu (Deceased)  eKLR the Court held as follows: -
37.In Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji Nakuru High Court HCCA No. 15 of 2003  eKLR, the Court made the following observation: -
38.Similarly, in Moses Mairua Muchiri vs. Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (Deceased)  eKLR, the Court held as follows: -
39.In the present case, PW1 testified that the deceased was a boda-boda rider earning a sum of Kshs. 12,000/= monthly. No proof of income was adduced. In the judgment, the trial Court settled for Kshs. 10,000/= as the multiplicand, 10 years as the multiplier and two-thirds as the dependency ratio.
40.The trial Court did not, however, give the basis of the multiplicand of Kshs. 10,000/= monthly. The Appellants contended that since there was no proof of earnings, then the trial Court ought to have been guided by the Minimum Wages (Amendment) Order, 2018 which would have placed the earnings at Kshs. 7,240/95.
41.The deceased met his death on 24th April, 2019 at the Kitale County Referral Hospital. By then the applicable Order was the Regulation of Wages (General) (Amendment) Order, 2018 which came into operation on 1st May, 2018. According to the Order, the amount of Kshs. 7,240/95 referred to the category of general laborers. But, the deceased was a trained and qualified rider. As such, the Appellants’ categorization of the deceased as a general laborer was inappropriate. The deceased would have ideally been in the category of driver’s for cars and light vans since boda-bodas vehicles are public service vehicles. In that category, the monthly wage was Kshs. 16,907/90.
42.From the above applicable Regulation of Wages (General) (Amendment) Order, 2018, it appears that the trial Court settled for a lower multiplicand.
43.Be that as it may, the dependency ratio of two-thirds was reasonable given the age of the deceased and the number of his family members who were proved on a preponderance of probability.
44.The resultant award from the above multiplier, multiplicand and dependency ratio would then have been Kshs. 1,352,632/=. The trial Court awarded the Respondents a gross sum of Kshs. 800,000/=. Since there is no cross-appeal by the Respondents, this Court opts not to disturb the award of Kshs. 800,000/= made on the loss of dependency.
45.As the awards on special damages were not impugned, then this Court’s finding on this appeal is that it should be dismissed with costs. In fact, the Appellants should consider themselves very lucky as the Respondents did not lodge any appeal against the judgment of the trial Court.
46.Consequently, the appeal is hereby dismissed with costs.