[2023] KEHC 25777 (KLR)

Ali v Nekoye & another (Suing on Their Own Behalf of the Estate of Emmanuel Wanjala Masimbo - Deceased) (Civil Appeal 185 of 2022) [2023] KEHC 25777 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25777 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 185 of 2022

DKN Magare, J

November 21, 2023

Between

Zainab Ali

Appellant

and

Mary Nekoye & Patrick Wafula Masibo (Suing on Their Own Behalf of the Estate of Emmanuel Wanjala Masimbo - Deceased)

Respondent

Judgment

1. This is an appeal form the judgment and decree of the Honourable Maureen Nabibya given on 27/4/2022. In Mombasa CMCC E292 of 2020.

2. The Appellant filed 11 odd grounds of Appeal. 3 of which are sets of ground No. 8. I will not set the grounds herein verbatim as they are repetitive and verbose. Order 42 Rule 1 that requires that the memorandum of Appeal be concise. The same provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

3. The Court of Appeal had this to say in regard to rule 86 (which is pari materia with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

4. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that : -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

5. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this court.

6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

7. The grounds can basically be summarized into one issue. The court erred in assessment of quantum of damages. It is important that parties maintain conciseness and avoid repetitive grounds. The Memo of Appeal is argumentative, prolixious verbose and unseemly.

8. The appeal is on quantum. The court awarded Kshs. 2,000,000/= for loss of dependence and a multiplier of 20 years. Meaning or dependency of 104,000 or 8,666. 67 per month. The fact that have been raised is that the deceased’s wife was still alive and could raise the couple’s six children. Of course she could raise them after the damages the Appellant is holding.

9. They also submitted that the mother who is aged, could in short, be, a dependent for a very short time. This was due to their feeling that she could die earlier than the rest of the dependants. This is both insensitive and cavalier. It is not that this thought has not twice or so crossed the minds of judges. It is only that they are wise not only to know what to say but also when not to say it. Wisdom is esoteric and as such expected to be found among very view select people.

10. This is the emphasize was camouflaged in the vicissitudes and uncertainty of life. In short, the aged parents were not so dependent since they were likely to die in a quick succession and due to advancement in age. It does not look nice on paper repeating what they were saying, submissions without a basis both in fact and I law. they stated that the award did not take into account that the amount awarded could have been invested.

11. The issue of damages is covered under the discretion of the court. The discretion differs from one person to another. The most important aspect is not what the deceased was earning. It is what he was giving the dependant, that is dependency. Dependency is a matter of fact. It must be proved and differs from one case to another.

12. The deceased is the same finite mortal. His mortality is the subject of this appeal. Children are a blessing. They are like arrows. Blessed in the where quiver that is full of them. The question we ask on determining this appeal is whether in determining damages the number of dependant is a factor.

13. Put another way, what is the role of the person with the shortest dependency period? My understanding is that there is no multiplicity of dependents. We take them as a unit and find as a fact, the aggregate or estimated depending being. Both parties agree as to the formula for computation of dependency as observed by Ringera, J. as he then was, in the case of Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another Nairobi HCCC No. 1638 of 1988 (UR) where J. Ringera stated as follows:“The principle applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The Court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The Court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants.”

14. The same judge, Ringera J, as then he was, made observations based on the principles for assessment of dependency in Kenya developed in the 1957 case of Peggy Frances Hayes and Others v. Chunibhai J. Patel and Another cited by the Court of Appeal for Eastern Africa in Radhakrishen M. Khemaney v. Mrs Lachaba Murlidhar (1958) E.A. 268, 269 (per Air Owen Corrie Ag. JA with whom Briggs, V-P and Forbes, JA agreed) as follows:“I have no doubt as to the principles which are to be applied to this appeal. In Civil Case No. 173 of 1956, delivered on March 26, 1957, in the Supreme Court of Kenya in an action brought by Peggy Prances Hayes and others against Chunibhai J. Patel and another, the principles applied by the learned chief justice, as he then was, were as follows:"The court should find the age and expectation of working life of the deceased, and consider the wages and expectations of the deceased (ie. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum the court should apportion among the various dependants."Upon an appeal against this judgment this court held ([1957] RA. 748 (C.A.):"That the method of assessment of damages adopted by the learned chief justice was correct."

15. Simply put, the formula for dependency, is the multiplicand, that is the annual net income multiplied by a suitable multiplier of expected working life lost by the deceased estate or dependants by the premature death, and multiplied by a factor of the dependency ratio, that is the ratio of the deceased’s income utilized on her dependants.

16. Longest the period of dependency is that of the widow. She is 42 years old. She will have been dependent up to 70 years, or till husband reaches 70 years. A dependency of 20 years for such a young family is proper in the circumstances.

17. If the deceased was 33 years, he was just to be 53 years when was to be 20 years lapse. The status of the deceased’s mother is irrelevant in a scenario where there is a young wife and children. The length of the mother’s dependency are irrelevant and untenable. The age of the wife and the youngest of the children determine mostly the length of dependency. It is not a mathematical calculation.

18. The next debate is whether in making awards in the headings the court took into consideration. It has been argued, albeit wrongly that damages ought to be reduced from. The law provided not for reduction is 1/3 or 2/3. Each case is decided on merits.

19. The Appellant submitted that that the circumstances of the deceased were not considered. They referred to the case of Amigo Limited v Phelestus Hoka Libulele (Suing as legal representative of the estate of Alex Olindi Opande (Deceased) [2019] eKLR, where the court on the multiplier 16 for a 39 year old. I find that 20 multiplier is reasonable.

20. They prayed that the court award Ksh. 1,118,072 on loss of expectation of life, made up as hereunder: -(13,395. 90 x 10 x12 x 2)/ 3 =1,118,072

Loss of expectation of life. 21. They further argued that the damages for loss of expectation of life as awarded at Ksh 100,000 was extremely high. The appellant’s case was that there was no documentary evidence of the deceased’s earning. They relied on the case of James Karanja v Joyce Njoki Maina & another [2020] eKLR, where Justice Kanyi Kimondo, confirmed an award of 20,000/ = for general damages for paid and suffering.

Loss of Dependency 22. On the aspect of loss of dependency he says that under section 4 (1) of the Fatal Accident Act outlines the benefits to the estate. Section 4 of the Fatal Accidents Act states as doth: -“4. Action to be for benefit of family of deceased(1)Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct: Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.(2)In assessing damages, under the provisions of subsection (1), the court shall not take into account—(a)any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of this Act;(b)any widow’s or orphan’s pension or allowance payable or any sum payable under any contributory pension or other scheme declared by the Minister, by notice published in the Gazette, to be a scheme for the purpose of this paragraph.

23. The Appellant case was that marital status cannot determine whether the dependency ratio or 1/3 or 2/3 applies. However, in their own calculation they applied 2/3. They also referred to causa celebra, The Court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

24. The Appellant placed reliance on the decision of Tayab v Kinanu [1983] eKLR, the court of Appeal is said to have stated as doth: -“The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339:“In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B over a century ago.‘Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ... You are not to consider the value of existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation’.”Later in his judgment, at 341, Lord Denning had this to say about extravagant awards:“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a national health service. But the health authorities cannot stand huge sums without impeding their service to the community. The funds available come out of the pockets of the tax payers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.” It seems to me that we should keep in the forefront of our minds the wise directions of B.”

Respondent’s submissions 25. For funeral expenses, they rely on the case All Oo. Alukwe vs Akamba Public Road Service Ltd & 3 Others (2013) eKLR, where the Court of Appeal. They emphasize the Court of Appeal aspect, that funeral expenses can be given receipts notwithstanding. Moving the body from Mombasa to Kilate, a sum of.

26. They state that the cases quoted do not support this case for a multiplier of 10 years. There submissions are buttressed by the decision in Sammy Kipkori Kosgei =vs= Edina Musikoye Muluya and another (2017) eKLR, Roger Damly =vs= Mwingi Omar Haji & Another 2001 eKLR and Board of governors of Kangubiri Girls high school and Another =vs= Jane Wanjiku =vs= Kenblest Ltd eKLR, the latter of which Justice Joyce Khaminwa J, as then she was considered 15 years for a risk Matatu driver career.

27. The Respondent stated that the only submissions on record were those of the Respondent as per the record of appeal. They state that the appellant proposed a sum of 900,000 in their submissions in the lower court and now propose 1,118,072 using minimum wage of Kshs. 13,975. 90 and multiplier of 10 years.

Analysis 28. The only issue the respondent identified was the question of the multiplier of 10 years as opposed to 20 years by the court. This I respectively agree with the respondent. At the end of the Appellants submission I formed a definite opinion that they were not serious with the Appeal. They are raising only one issue, in respect to loss of dependency. The multiplier showed be 10 not 1 20. There is no reason assigned to the particular multiplier they were seeking. There is completely nothing to show that in exercise of its discretion, the court erred.

29. The Court of Appeal, for Eastern in the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

30. The court awarded a multiplier of 20 years. Were, I the one sitting I will have awarded 25 years. However, the test is not what I could have awarded. The test is whether the trial court took into consideration irrelevant factors and or ignored relevant factors or was the plaintiff wrong.

31. The issue of submissions is not germane. The same cannot as such, be a stand alone ground of Appeal. Submissions ae not evidence to be analysed. They do not even bind the author of the same. In the case of Moses Mungatia Mutungi v Hannah Nyagathiri Ng’ang’a & another [2021] eKLR, the court stated as follows: -“51. Suffice it to say, that submissions are not evidence, and that submissions cannot replace evidence, in its infinite aspects and/or perspectives.52. In support of the foregoing observation, I can do no better than to rely on the Decision in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where the Honorable Court observed as hereunder;“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. In any event all the 1st respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies. And even that he did not do.”

32. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

33. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

34. So my duty as the appellate court is threefold regarding quantum of damages: -

35. To ascertain whether the Court applied irrelevant factors or left out relevant factors. To ascertain whether the award is too high as to amount to an erroneously assessment of damages. The award is simply not justified from evidence. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

36. By reading the Respondents submission I am now fully confirmed that the appeal n loss of dependency is otiose. Failure to consider submission is not a ground of appeal. In the case of Paul Ouma vs Rosemary Atieno Onyango & Peter Juma Amolo (suing as the legal representative in the estate of Joseph Onyango Amolo (deceased) [2018] eKLR, Justice, J.A. Makau confirmed a multiplier of 20 years which had been adopted by the Learned Magistrate for a deceased who was 38 years old.

37. In the case of Pleasant View school Limited vs Rose Mutheu Kithopi & Another [2017] eKLR, Justice J. Kamau affirmed a multiplier of 20 years which had been adopted by the Learned Magistrate, for a 36-year old man.

38. Regarding the question of general damages for pain and suffering, the case of Antony Njoroge Ng’ang’a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) v James Kinyanjui Mwangi & 2 others [2022] eKLR, comes in handy.“22. In view of the above cited authority it is clear that when death followed immediately after the incident very nominal damages should be awarded. The plaintiff submitted that the deceased died on 28th April 2018 while the accident occurred on 27th April 2018. The same is proved by the death certificate which was admitted into evidence by both parties’ consent. The respondent on their part, argued in their submissions that the said award was sufficient given that the deceased died on the spot.23. From the foregoing, it is evident that the deceased did not die immediately after the accident but a day after and thus he must have endured pain and suffering before he lost his life. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court stated as follows-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/= while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” (emphasis added).

39. There is no basis for disturbing the award. In the circumstances the court does below, did not err in awarding. 20 years multiplier. The discretion was exercised judiciously. I dismiss the claim for loss of dependency.

40. On loss of expectation of life. The conventional figure is between 100,000 – 200,0000 /= The deceased was a younger man. He expected to be 70 years. This was drastically reduced to nil. The award of 100,000/= is sufficient. There is no basis in law and in fact. This award was not erogenous.

41. The award of damages for funeral expenses should not be denied despite lack of receipts. In Africa we mourn first, then claim. Most of the depends are uniformly done. There are no undertakers and formal arrangers. It is done by family. It is clear that deceased burial is done. The evidence was tendered that the deceased was buried in Rilab and the death. Occurred in Mombasa. Burial expenses of Kshs. 100,000 are reasonable.

42. Michael Munga Mahia v Kenya Universities & Colleges Central Placement Services [2021] eKLR, the court, Justice Nzioki wa Makau stated as follows:-“That in the case of Albert Yawa Katsenga v Kenya Revenue Authority, Nairobi ELRC No. 713 of 2018, the Court held that:“The rule provides circumstances under which this Court can grant orders for review and this include circumstances as indicated, in the Applicant’s position, review sought on the account of an error on record because the Court failed to consider their submissions which had been filed, indeed, the time of writing this Justicement, the Respondent's submissions had not been filed. They were also not on record. That notwithstanding, this Court considered the evidence of the Respondents on record and also considered the law and facts in arriving at Court’s determination. Failure to consider the submissions of the Respondents does not in mv view prejudice the Respondents at all since all facts and the law in this case was considered. There is therefore no valid reason for me to consider a review order as sought.”

43. In the Bash Hauliers v Dama Kalume Karisa & another [2020] eKLR,“27. In the event that he found the said authorities off the mark, he was at liberty not to be persuaded by them. Although Counsel for the appellant submitted that the authorities he cited on the issue of multiplier were binding on the Hon. Magistrate. They were not as what the Magistrate was obliged to do was to exercise his discretion judiciously as each case depends on its own special circumstances. In settling for a multiplier of 20 years the Hon. Magistrate stated as follows:-“The deceased was aged 32 (thirty two) years when he died. He could have lived to beyond (sixty) years. There is no retirement age in the informal sector. The deceased could have worked for 28 (twenty eight) years or even beyond. However, there are many uncertainties and contingencies of life. He could as well have died or been incapacitated before reaching 60 (sixty) years. Considering the contingencies of life, I adopt a multiplier of 20 (twenty) years. The multiplier of 12 (twelve) years which the defendant proposes in his submissions is too low and unreasonable.” (emphasis added ).33. Having referred to the above authorities in considering if the multiplier of 20 years adopted in this case was reasonable, this Court has no basis to interfere with the discretion exercised by the Hon. Magistrate in adopting a multiplier of 20 years for the deceased who was 32 years old. I uphold the decision of the Hon. Magistrate in that regard.”

44. In the case of Elizabeth Chelagat Tanui & Another vs Arthur Mwangi Kanyua [2013] eKLR, Justice H.P.G Waweru J adopted a multiplier of 18 years where the deceased was 36 years old.

45. In Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR, it was held as follows: -“The jurisdiction of the Court to either award costs or interfere with an award of costs made by the Court appealed from is donated by Rule 31 of the rules of the Court. It provides as follows:“31. On any appeal the Court shall have power, so far as its jurisdiction permits, to confirm, reverse or vary the decision of the superior court, or to remit the proceedings, to the superior Court with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders, including orders as to costs”.

46. In the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] eKLR, Loss of expectation of life, this court is guided by the decisions in Lucy Wambui Kohoro v Elizabeth Njeri Obuong (2015) eKLR and in Civil Appeal No. 113 of 2012 Makano Makonye Monyanche v Hellen Nyangena (2014) eKLR in which the Learned Judge R.N. Sitati held: -“I find no reason to interfere with the award on loss of expectation of life under Law Reform Act as the same is always awarded at Ksh. 100,000/- across the board and the same was eventually deducted to avoid double award to same beneficiaries.”

47. This court finds no good ground adduced to disturb the award made under the loss of expectation of life. The award shall eventually be taken into consideration when making the final award to avoid double compensation to the estate of the deceased.

48. In the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] eKLR, the court held as doth follows: -“2. The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh. 100,000 awarded for Loss of life expectation to Sh. 70,000 despite confirmation in its judgment that there was no dispute on the award. Mr. Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction.”

49. Michael Munga Mahia v Kenya Universities & Colleges Central Placement Services [2021] eKLR, the court, Justice Nzioki wa Makau stated as follows:-“That in the case of Albert Yawa Katsenga v Kenya Revenue Authority, Nairobi ELRC No. 713 of 2018, the Court held that:“The rule provides circumstances under which this Court can grant orders for review and this include circumstances as indicated, in the Applicant’s position, review sought on the account of an error on record because the Court failed to consider their submissions which had been filed, indeed, the time of writing this Justicement, the Respondent's submissions had not been filed. They were also not on record. That notwithstanding, this Court considered the evidence of the Respondents on record and also considered the law and facts in arriving at Court’s determination. Failure to consider the submissions of the Respondents does not in mv view prejudice the Respondents at all since all facts and the law in this case was considered. There is therefore no valid reason for me to consider a review order as sought.”

50. In the case of Elizabeth Chelagat Tanui & Another vs Arthur Mwangi Kanyua [2013] eKLR, Justice H.P.G Waweru J adopted a multiplier of 18 years where the deceased was 36 years old. In the case of Cromwell Mzame v Zablon Mwanyumba Lalu (Suing as Administrator of the estate of Allen Warito Lalu (Deceased) & another [2022] eKLR, the court stated as doth: -“9. For loss of expectation of life, as held in the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the administrator of the late Robert Mwangi) [2019] eKLR referred to in the trial court’s judgment, nominal damages should be awarded if death followed immediately after the accident. In consideration of the authorities relied upon which were pronouncements made in 2017 and 2018, this court finds that the same are reasonable.The Appellant had cited the case of Victoria Ng’endo v J. K. Njoroge High Court Civil Case No. 3849 where Ksh. 70,000 was awarded after consideration of the issue of inflation. The authorities are obviously too old to be applicable to the current situation if inflation is to be considered. The failure to adduce evidence on the health and lifestyle of the deceased cannot be taken into account where the deceased died as a result of a road traffic accident.”

51. The damages for pain and suffering were awarded at 50,000/=. The deceased died the following day. The court awarded nominal damages of 50,000/=. In Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, the court, Justice W Musyoka stated as doth:“13. In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Kshs. 50,000. 00 for pain and suffering, the appellate court captured the spirit of the law on the issue when it stated:“[5]On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”

52. The Court was right in exercise of discretion. The awards are within range. In the circumstances, I find no merit in the appeal. The appeal lacks merit. It is accordingly dismissed with costs of Kshs. 125,000/=.

Determination 53. The upshot of the foregoing I make the following orders: -a.The appeal lacks merit and is accordingly dismissed with costs of Kshs. 125,000/=.b.The same shall be paid within 30 days failing which the execution shall issue.c.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Njoroge for RespondentMr. Adede for Gor for the AppellantCourt Assistant - Brian