[2022] KEHC 17003 (KLR)

B. M Logistics Limited v Mwikali & another (Suing as the legal administrators and representatives of the estate of Elizabeth Mutinda) (Civil Appeal 13 of 2019) [2022] KEHC 17003 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17003 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 13 of 2019

GWN Macharia, J

December 15, 2022

Between

B. M Logistics Limited

Appellant

and

Josephine Mwikali

1st Respondent

Jonathan Mwawaka Tole

2nd Respondent

Suing as the legal administrators and representatives of the estate of Elizabeth Mutinda

(An appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha 2018 CMCC No 144 of 2017 delivered by Hon K Bidali, CM on November 29)

Judgment

The Appeal 1. The instant appeal was instituted vide a Memorandum of Appeal filed on March 12, 2019 in which the appellant sought, inter alia, to have the award on loss of dependency set aside and a reassessment of the same done.

2. The grounds set out in the Memorandum of Appeal are that:i.The learned trial magistrate erred in law and in fact in adopting Kshs 80,000. 00 as the multiplicand in arriving at his award of loss of dependency.ii.The learned trial magistrate erred in law and in fact in failing to find and hold that the multiplicand of Kshs 80,000. 00 was not proved as required.iii.The learned trial magistrate erred in law and in fact by disregarding the appellant’s submissions and wholly relying on the respondent’s in arriving at the award on loss of dependency.iv.The learned trial magistrate erred in law and fact by considering irrelevant factors and leaving out relevant ones in arriving at his award on loss of dependency.v.The learned trial magistrate’s judgment was arrived at in a cursory and perfunctory manner without properly analyzing evidence presented in the suit on the issue of dependency and the award on the same is unjustified, excessive and oppressive to the appellant.

3. The appeal was canvassed by way of written submissions.

Background 4. The respondents initiated the claim in the trial court vide a Plaint dated March 13, 2017. They claimed damages both under the Fatal Accidents Act and the Law Reform Act. They also sought special damages, costs and interests.

5. The deceased is averred to have been travelling as a passenger aboard motor vehicle registration number KBK 371Y along Nairobi-Naivasha road when at Nyamathi area, the said motor vehicle was knocked from behind by motor vehicle registration KBA 925G lorry/track owned by the appellant as a result of which the deceased sustained fatal injuries.

6. The appellant filed a statement of defence dated August 30, 2017 in which it denied negligence on its part and urged the court to dismiss the claim.

Evidence 7. This being the first appeal, I am required to reconsider the evidence adduced, re-evaluate it and draw my own conclusions, bearing in mind that I did not hear or see the witnesses who testified. See Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123.

8. PW1, Josphine Mwikendia testified as the deceased’s sister. She adopted her statement. She produced grant of letters of administration ad litem which granted her and her co-administrator the authority to file the suit on behalf of the estate of the deceased. She testified that she was called by her brother that the deceased had not called and was reported missing at work. They later came to realise she died as a result of an accident. She testified that they incurred funeral expenses of Kshs 243,250. 00. She produced receipts in support of the same. She further stated that her deceased sister was unmarried and was survived with two sons. She was employed as a personal assistant and earned Kshs 80,000. 00 per month. In cross examination, she stated that the deceased was a degree holder and her account of events was informed by the police records.

9. PW2, PC Paul Muthengi was a traffic police officer attached to Naivasha Traffic Base. He confirmed the accident and stated that the deceased died as a result of the same. The appellant’s driver was blamed for the accident but was not charged as he immediately escaped. He produced the police abstract. In cross examination, he stated that he was not the investigating officer and that investigations had since been concluded.

10. PW3, Jonathan Mutinda was the deceased’s son. He testified that he was a student and prayed for compensation as his deceased mother was their sole provider.

11. PW4, Fridah Mbutia was an eyewitness. She was aboard the same motor vehicle as the deceased. She testified that the appellant’s vehicle hit them from behind. In cross examination, she stated that the vehicle they had boarded was not stationery when it was hit.

12. PW5, Jonathan Brian Kaithe was the deceased’s employer. He stated that he is a Kenyan citizen and he had hired the deceased who was on probation and was due for confirmation. He would pay the deceased Kshs 80,000. 00 and leave to her the task of remitting her own taxes and statutory obligations. He made payments via EFT. He could not recall the deceased’s qualifications but he was certain she was more than qualified for the job.

13. The appellant on the other hand never called a witness in support of its case.

Submissions 14. The submissions by the appellant were filed on March 2nd March, 2022. The only issue raised was whether the right multiplicand was applied. It was the appellant’s position that the learned trial magistrate ought to have taken notice that the deceased’s income was subject to taxes as well as statutory deductions. It was the appellant’s position that the deceased’s income of Kshs 80,000. 00 should have been reduced by 30% so as to arrive at the net pay. The appellant invited the court to consider the position in the case of Simeon Kiplimo Murey & 3 others v Kenya Bus Management Services Limited & 4 others [2014] eKLR where it was held that:“I now turn to the issue of the net income. The learned magistrate correctly pointed out that plaintiff was bound by the pleadings which showed that the deceased’s salary was Kshs 20,000/- although the proved salary was Kshs 40,000/. Although the statutory deductions were not disclosed, the court could readily ascertain these from the relevant law. I would estimate that statutory deductions such as income tax, NSSF and NHIF would amount to about one third of the gross salary leaving a net income of about Kshs 26,000/- less a reasonable sum the deceased would spend on himself. The appellant, in the pleadings and submissions, accepted that the amount pleaded and proved is Kshs 20,000/- and the same should have been awarded as the net income. I therefore find and hold that the multiplicand is Kshs 20,000. 00. ”

15. Further reliance was placed on the Court of Appeal decision in Rosemary Mwasya v Steve Tito Mwasya & another [2018] eKLR where the Court posited:“As for the multiplicand, the only guide the learned judge had before him was the survey on salaries. The judge settled for the salary applicable to accountants as that was the profession the deceased would have pursued had death not claimed her life. The figure chosen of Kshs 118,546/= took into consideration yearly increments had the deceased successfully followed her career. The only error we note the trial Judge committed in arriving at the final figure was the failure to factor in, the element of taxation and other compulsory statutory deductions which in our view would have amounted to one third of the figure chosen as the multiplicand which would work out as Kshs 118,546/=x 1/3=39,512. When factored into the figure chosen as the multiplicand, it gives a final figure of Kshs 79,034/=.”

16. The appellant, in view of the foregoing, urged the court to subject the multiplicand of Kshs 80,000. 00 to 30% deduction and have re-assessment of loss of dependency using a multiplicand of Kshs 56,000. 00

17. The respondents in urging the court to affirm the findings of the trial magistrate with respect to the multiplicand relied on the case ofPhilomena Mutheu Nzyoka (Suing as legal representative of the estate of the late Timothy Kiema Musango v Transpares Kenya Limited [2016] eKLR.

18. The respondent urged the court to dismiss the appeal with costs.

Analysis and determination 19. In this appeal, the only issue that falls for determination is whether the correct multiplicand for the purposes of computing the earnings of the deceased was used. Section 2 of the Insurance Motor Vehicle Third Party Risks Amendment Act, 2013 provides that:“earnings” means revenue gained from labour or services and includes the income or money or other form of payment that one receives from employment, business or occupation or in the absence of documentary evidence of such revenue, the applicable minimum wage under the Labour Relations Act, 2007 or the determination of the reasonable income, whichever is higher.

20. Although the above provision does not speak to the income of a person due to his/her dependants, I am of the considered view that the net earnings is the best guide when it comes to determining the applicable multiplicand. This is because net income is what a person uses for his/her needs and so it would be inappropriate to require that a compensation be made for what a person does not expend on. However, each case ought to be considered based on its own merits. If a court for any reasons is faced with evidence that some of the deductions affecting the net income are those that are intended for the benefit of the dependants and as a result of the death of the deceased, the said benefits are lost, then the same have to be taken into consideration. In the instant case though, no such specific deductions have been alluded to and it would be prudent that in reaching the deceased’s income, the gross income ought to be subjected to statutory deductions and taxes. I say so guided by the position taken by the Court of Appeal in the case of Rosemary Mwasya v Steve Tito Mwasya & another [2018] eKLR that the gross salary of the deceased ought to be subjected to a third deduction so as to arrive at an approximate net income. I cannot agree more since the net income is the amount the earner and his/her dependants rely on for upkeep. That is what ought to be compensable.

21. In view of the foregoing, I concede to the appellant’s proposal to subject the gross salary of Kshs 80,000. 00 to 30% deduction and so loss of dependency be calculated thus:Kshs 56,000. 00 x 12 x 12 x2/3 = Kshs 5,376,000. 00

Disposition 22. For the above reasons, I allow the appeal and set aside the award for loss of dependency which is substituted as tabulated above. The other awards are uncontested and I shall not interfere with them. Judgment is accordingly entered for the respondents against the appellant as follows:-i.Loss of dependency - Kshs 5,376,000. 00ii.Pain and suffering - Kshs 20,000. 00iii.Loss of expectation of life - Kshs 100,000. 00. iv.Special damages - Kshs 318,450. 00Total - Kshs 5,814,450

23. The appellant will have the costs of the appeal. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022. G W NGENYE-MACHARIAJUDGEIn the presence of:No appearance by parties. It is noted that court gave notice of today’s judgment date online and has been running @ kenyalaw for the last two weeks.