[2022] KEHC 17082 (KLR)

Bajaber Stores Limited v Mohamed & another (Both Suing as the Legal Representatives/Administrators of the Estate of Mohamed Adan Mohamed Deceased) (Civil Appeal 128 of 2019) [2022] KEHC 17082 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 17082 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 128 of 2019

MN Mwangi, J

October 7, 2022

Between

Bajaber Stores Limited

Appellant

and

Ali Adan Mohamed (suing as the legal representative/administrator of the Estate of Mohamed Adan Mohamed (Deceased))

1st Respondent

Abdi Adan Mohamed (suing as the legal representative/administrator of the Estate of Mohamed Adan Mohamed (Deceased))

2nd Respondent

Both Suing as the Legal Representatives/Administrators of the Estate of Mohamed Adan Mohamed Deceased

(An Appeal from the judgment of Hon. C. N. Ndegwa, Senior Principal Magistrate, delivered on 29th May, 2019 in Mombasa Chief Magistrate’s Court Civil Cause No. 2039 of 2017)

Judgment

1. In the lower Court, the respondents sued the appellant through a plaint dated 1st December, 2017. The respondents sued on behalf of the deceased’s estate, as the legal administrators of Mohamed Adan Mohamed (deceased), seeking recovery of special damages, damages under the Fatal Accidents Act, Cap 32 of the Laws of Kenya and the Law Reform Act, Cap 26 of the Laws of Kenya, general damages for pain and suffering, loss of expectation of life and loss of dependency. They also sought costs of the suit and interest at Court rates from the date of filing the suit until payment in full.

2. The respondents averred that on or about 22nd August, 2016, the deceased was lawfully driving motor vehicle registration number KAY 612l/ZC 8342 along the Mombasa-Nairobi highway and that upon reaching Miritini near Compact Freight System, the appellant’s driver, agent and/or servant carelessly, negligently and/or recklessly drove motor vehicle reg no KBS 826M/ZE 0964 DAF Lorry thereby causing the same to ram into motor vehicle reg no KAY 6121/ZC 8342 causing the deceased to sustain fatal injuries.

3. The appellant was sued as the duly registered owner, driver, servant and/or agent of motor vehicle registration number KBS 826M/ZE 0964 DAF Lorry, which was being driven at the time the said accident occurred. The respondents averred that the doctrine of res ipsa loquitor is applicable in the case. The respondents contended that by reason of the said accident, the deceased sustained fatal injuries and lost his normal expectation of a happy and successful life and his estate had suffered loss, expenses and damage extensively.

4. The respondents stated that the deceased at the time of death was aged 30 years, enjoyed good health and was earning a living as a driver up to the time of the accident. They further stated that the parents of the deceased were wholly dependent on the deceased for maintenance and support and that by his death, they had lost the said means. The respondents pleaded special damages of ksh 110,150. 00.

5. The appellant filed his statement of defence dated 24th September, 2018, where it denied the respondents’ claim in its entirety. It specifically denied that the respondents were the legal representatives of the estate of Mohamed Adan Mohamed and that letters of administration ad litem were granted to them in CMCC no 232 of 2017. It further denied that the respondents had locus standi to sue under the Fatal Accidents Act.

6. The appellant admitted that an accident occurred on 22nd August, 2016 along the Mombasa-Nairobi highway at Miritini between motor vehicle reg no KAY 612L/ZC 8342 AXOR and motor vehicle reg no KBS 826M/ZE 0964 DAF Lorry but the said accident was wholly caused by the negligence of the deceased in managing, driving and/or controlling motor vehicle reg, no KAY 612L/ZC 8342 AXOR. The appellant denied that the doctrine of res ipsa loquitor was applicable to the case.

7. A consent on liability was entered into in the lower Court where liability was apportioned in the ratio 30:70 as between the respondents and the appellant, respectively. Judgment was entered for the sum of ksh 1,743,105. 00 in general damages, which was to attract interest from the date of the judgment. The respondents were awarded special damages of ksh 60,150. 00 which was to attract interest from the date of filling the suit. They were also awarded costs of the suit.

8. The appellant was dissatisfied by the decision of the Trial Magistrate and filed a Memorandum of Appeal on 28th June, 2019 raising the following grounds of appeal-i.That the learned Magistrate erred in law and fact by failing to find that the respondents were not dependants of the deceased in view of the provisions of the Fatal Accidents Act and were therefore not properly in Court;ii.That the learned Magistrate erred in law and fact by awarding damages of Kenya Shillings One Million, Seven Hundred and Forty-Three Thousand, One Hundred and Five (ksh 1,743,105. 00);iii.That the learned Magistrate erred in law and fact by calculating loss of dependency using the deceased’s gross salary of Kenya Shillings Twenty-Eight Thousand, Five Hundred (ksh 28,500/=) while disregarding the statutory deductions that the deceased used to pay the government;iv.That the learned Magistrate erred in law and fact by awarding special damages of Kenya Shillings Four Hundred and Forty-Two Thousand One Hundred and five (ksh 42,105/=) (sic);v.That the learned Magistrate erred in law and fact by disregarding the fact that the respondent did not specifically prove the different heads of special damages as awarded; andvi.That the learned Magistrate erred in law and fact by awarding both loss of expectation of life and loss of dependency thereby allowing the deceased’s estate to gain twice.

9. The appellant’s prayer is for the appeal herein to be allowed with costs and for this Court to set aside and/or vary the learned Magistrate’s judgment of 29th May, 2019 as this Court deems fit.

10. This appeal was canvassed by way of written submissions. On 31st March, 2022, the law firm of V. N. Okata & Company Advocates filed written submissions on behalf of the appellant, whereas the respondents’ submissions were filed on 29th March, 2022 by the law firm of Kiarie Kariuki & Company Advocates.

11. Ms. Okata, learned Counsel for the appellant relied on the provisions of Section 4 of the Fatal Accidents Act and submitted that the deceased’s brother should not have testified as to loss of dependency as he was not a direct beneficiary of the action. She submitted that at the time of his death, the deceased was thirty years old, he was not married and had no children. That he was living in Mombasa whereas his parents were living in Migori. She further submitted that the deceased’s brother testified that the deceased used to send to his parents ksh 15,000/= monthly, but no Mpesa records were produced and there was no direct evidence from the deceased’s parents.

12. She relied on Section 8 of the Fatal Accidents Act and submitted that there were no records to show whether the said parents were the deceased’s parents and whether they were alive, since none of the documents produced by the respondents showed or proved dependency on the deceased. Ms. Okata cited the case of Tom Oluoch Oloo (Suing as administrator of George Ochieng Ngoche) v African Safari Club [2019] eKLR and submitted that nothing would have been easier than to produce Mpesa records of money sent to the parents to prove dependency. In addition, she stated that the parents of the deceased have other children whom they rely on.

13. Ms Okata stated that the appellant has no issue with the multiplicand adopted of 1/3 but maintained that a multiplier of 15 years would have been fair and reasonable. On the issue special damages, she submitted that the respondents were awarded ksh 42,105. 00 when they only proved ksh 9,650. 00 being funeral home expenses of ksh 8,500/= and ksh 1,150. 00 being the costs of obtaining letters of administration.

14. She relied to the case of James Gakinya Karienye & Anncy Muguru Gakinya (Suing as the legal representative of the estate of David Kelvin Gakinya) v Peter Kariuki Githinji Nairobi HCCC no 91 of 2014, where the Court awarded ksh 10, 000/= for pain and suffering. She submitted that the accident herein occurred on 22nd August, 2016 at 9. 00pm; where the deceased died instantly, thus an award of ksh 10,000/= would be sufficient. She relied on the case of Pleasant View School Limited v Rose Mutheu Kithoi & another [2017] eKLR, where the Court cited the case of Kemfro Africa Limited v Aziri Kamu Lubia & another [1882-1988] 1 KAR 727. She urged this Court to revise the award on quantum as hereunder-i.Pain and suffering - ksh 10,000. 00ii.Loss of expectation of life - ksh 70,000. 00iii.Loss of dependency 15,000x1/3x15x12-ksh 900,000. 00iv.Special damages - ksh 9,650. 00- ksh 989,650. 00v.Less 30% contributory negligence - ksh 296,895. 00Total - ksh 692,755. 00

15. Mrs. Kabole, learned Counsel for the respondents relied on the provisions of Section 4 of the Fatal Accidents Act and submitted that the respondents are not dependants of the deceased since they are his brothers and that they filed the suit herein in their capacity as administrators of the estate of the deceased. She also relied on the provisions of Section 8 of the Fatal Accidents Act and submitted that at paragraph 8 of the plaint, the respondents pleaded that the persons who were claiming under the Fatal Accidents Act were the mother and father of the deceased who were aged 59 and 72 years, respectively. She submitted that this was proved by the Chief’s letter which was produced as plaintiff exhibit 6.

16. She cited the case of Kigaragar v Agripiana Mary Aya [1982-1988] KAR 768 and submitted that the respondents herein had pleaded ksh 110,150. 00 as special damages but the Trial Magistrate reduced the said amount and awarded them ksh 60,150. 00 as he noted that the deceased came from a Muslim family and he was buried the day after the accident. That due to the said fact, the said Magistrate held that funeral and related expenses were minimal. Mrs. Kabole submitted that the award of damages of ksh 1,743,105. 00 was not manifestly excessive. She stated that the appellant had not demonstrated that the Trial Magistrate erred by applying a wrong principle in arriving at the said award.

17. In regard to special damages, Mrs. Kabole submitted that save for the funeral expenses in respect of which no receipts were produced by the respondents, all the other amounts pleaded were strictly proved as required by law. She urged this Court not to interfere with the special damages of ksh 42,105. 00 as the same are reasonable. She stated that the respondents produced plaintiff exhibit no 5, which is a copy of a letter dated 9th October, 2017 from Awale Transporters Limited which had enclosed a DOSH Certificate as evidence that the deceased was earning ksh 28,500/= monthly.

18. Mrs. Kabole submitted that there are two schools of thought in so far as the issue of double benefit is concerned, one of which is by awarding damages for loss of expectation of life and loss of dependency. She relied on the Court of Appeal decision in Hellen Waruguru Waweru (Suing as the legal representative of the estate of Peter Waweru Mbenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR, and submitted that in the instant case, the Trial Magistrate did not allow the estate of the deceased to benefit twice by awarding damages for loss of expectation of life and loss of dependency. In addition, she submitted that the award of ksh 100,000/= for loss of expectation of life as well as ksh 1,596,000/= for loss of dependency are reasonable thus there is no reason why this Court should interfere with the same.

Analysis And Determination. 19. This being a first appeal, this Court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusion, while bearing in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. This was stated in the case of Peters v Sunday Post Limited [1985] EA 424 as hereunder-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

20. I have re-examined the Record of Appeal and given due consideration to the submissions by the parties’ respective Counsel. A consent judgment was entered on liability in favour of the respondents as against the appellant in the ratio 30:70 before the Trial Magistrate. This being an appeal only on quantum, it is trite that this Court will only interfere with the judgment of the lower Court if the same is founded on wrong principles of law and/or misapprehension of the evidence. That was the holding by the Court of Appeal in in Butt v Khan [1977] 1 KLR, where it was stated that-“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.

21. The appellant herein relied on Section 4 of the Fatal Accidents Act and submitted that the deceased’s brother cannot testify as to loss of dependency as he is not a direct beneficiary of the action. Section 4(1) of the Fatal Accidents Act, Cap 32 Laws of Kenya provides as follows-“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:…”

22. It is not disputed that the respondents are not proper dependants of the deceased in line with the above provisions. They however derived their authority to file the suit in the lower Court from the limited grant ad litem issued to them on 5th July, 2017 in Chief Magistrate Court Succession Cause no 232 of 2017. A copy of the said letters of administration was produced before the Trial Court as plaintiff exhibit no 9. It is my finding that Section 4 of the Fatal Accidents Act does not preclude an administrator from testifying as long as the suit has been brought for the benefit of the deceased dependants and in this case, the deceased’s parents. I am therefore of the considered view that the respondents herein had the requisite locus standi to file the suit herein on behalf of the estate of Mohamed Adan Mohamed (deceased) in their capacity as the administrators of the said estate.

23. Prior to his death, the deceased was a driver at Awale Transporters Limited. He was not married and he had no children but PW1 who is the deceased’s brother as well as a respondent herein, adduced evidence that his parents depended on the deceased for their livelihood. It is evident from the record that the deceased earned a monthly salary of ksh 28,500/=, from which he used to support his parents. In the Trial Court, the respondents produced a letter dated 9th October, 2017 from the deceased’s employer, and a duly filled Directorate of Occupational Safety and Health Services Form, both of which indicated that the deceased’s salary was ksh 28,500/=.

24. In the case of Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLR, the Court made the following observation in regard to awards under the Law Reform Act, Cap 26 Laws of Kenya-“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 isksh100,000/= while for pain and suffering the awards range fromksh10,000/= toksh100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” (emphasis added).

25. In the case before this Court, Ali Adan Mohamed (PW1), a respondent herein testified that the deceased sustained serious injuries as a result of the accident, and since he was in a critical condition, he was rushed to Bomu Hospital in Majengo, Mombasa where he was pronounced dead. In addition, during cross-examination, PW1 stated that the deceased died hours after the accident. A perusal of the death certificate indicates that the deceased died at Bomu Hospital as a result of acute hemorrhage shock (sic) due to a road traffic accident.

26. It is therefore safe to conclude that the deceased passed on a few hours after the accident after enduring a lot of pain and not immediately after the accident happened as submitted by the appellant’s Counsel. In Beatrice Mukulu Kang’uta & another v Silverstone Quarry Limited & another [2016] eKLR, the Court made an award of ksh 200,000/= for pain and suffering in a matter where the deceased died on the same day of the accident. The accident therein had occurred at 6. 00a.m, and the deceased passed on at 11. 40a.m. In view of the evidence adduced by the respondents’ witness (PW1), I find that the award made by the Trial Court of ksh 50,000/= under this head was not excessive. I therefore uphold the Trial Court’s award of ksh 50,000/= under the head of pain and suffering.

27. In the present case, the deceased was aged 30 years at the time of his death and was working as a driver. As correctly stated by the Trial Court in his judgment, the appellant did not adduce any evidence to dispel the assertion by the respondents that the deceased enjoyed good health until the time of the accident. In the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR the Court when making an award for loss of expectation of life made the following observation -“The conventional award for loss of expectation of life is ksh 100,000/- …”

28. In the judgment of the lower Court in this case, an award of ksh 100,000/= was made for loss of expectation of life. I have no good reason to depart from the said award, which I uphold.

29. On the issue of compensation both under the Law Reform Act and the Fatal Accidents Act, the Court of Appeal addressed the issue of double compensation in a bid to set the record straight on whether an award of loss of expectation of life under the Law Reform Act and an award of loss of dependency under the Fatal Accidents Act amounts to double compensation when dealing with the case of Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja (deceased) v Kiarie Shoe Stores Limited [2015] eKLR. The Court held as hereunder -“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under The Law Reform Act and dependants under The Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under The Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under The Law Reform Act, hence the issue of duplication does not arise.”

30. In paragraph 8(a) of the plaint, the respondents averred that the claim herein under the Fatal Accidents Act was brought for the benefit and on behalf of Adan Mohamed Abdinoor aged 72 years and Adey Omar Osman aged 59 years, the deceased’s father and mother, respectively, in compliance with Section 8 of the Fatal Accidents Act Cap 32 Laws of Kenya. In addition, the respondents produced a copy of a letter from the Assistant Chief of Rhamu sub-location dated 20th April, 2017 as plaintiff exhibit no 6 in which the beneficiaries of the deceased were listed. Therefore, this Court finds that the parents named in the Assistant Chief’s letter dated 20th April, 2017 are dependants of the deceased before or at the time of death and so their claim under the Fatal Accidents Act, Cap 32 Laws of Kenya is maintainable.

31. The Trial Court while making an award under this head stated that the deceased was 30 years old at the time of the accident and working as a driver. He was earning ksh 28,500/= monthly. The Trial Court adopted a dependency ratio of 1/3 and a multiplier of 20 years making it ksh 2,280,000/=. The appellant’s Counsel contended that failure to provide Mpesa records to prove that indeed the deceased was sending his parents ksh 15,000/= monthly was fatal to the respondents’ claim for loss of dependency.

32. The appellant’s Counsel relied on the case of Tom Oluoch Oloo (Suing as administrator of George Ochieng Ngoche v African Safari Club (supra), where the Court held that dependency is a matter of fact to be proved by evidence. After going through the said decision, I find that the circumstances therein are not similar to the ones herein. In the said decision, the appellant, did not produce any documentation to establish that the dependants therein were parents of the deceased. The Trial Court therein stated that there was also no evidence proving that the plaintiff was the father to the deceased or that the persons listed at paragraph 7 of the plaint were the deceased’s mother and siblings. The said Court further stated that the birth certificates of the deceased’s siblings or even a letter from the Chief of their locality would have sufficed to prove the existence of the relationship.

33. Having given careful consideration to the submission by ms Okata on the issue of dependency, I am of the view that dependency is not proved by showing exchange of money from one person to another, and as such, dependency was proved in this case. In the authority relied on by ms Okata, the parties therein did not prove employment of the deceased however, in the instant case, it is not disputed that the deceased was a driver at Awale Transporters Limited earning ksh 28,500/= per month.

34. In Millicent Kimuli & Anor v Mbisi Linah Catherine & another [2015] eKLR, the Court adopted a multiplier of 30 years for a deceased who died at the age of 30. The appellant herein has not stated in what manner the Trial Court misapprehended the evidence. I uphold the multiplier of 20 years awarded by the Trial Court in this case for being fair and reasonable. The application of 1/3 dependency ratio was not challenged, thus the award of damages for loss of dependency is upheld.

35. On the issue of special damages, it is trite law that they should be specifically pleaded and strictly proved.The respondents pleaded special damages of ksh 110,150/= but at the hearing the receipts produced supported an amount of ksh 9,650. 00. The Trial Magistrate awarded ksh 60,150/= and in so doing stated that the deceased came from a Muslim family, he was buried the following day and therefore funeral and related expenses were minimal. In Premier Dairy Limited v Amrit Singh Sago & Another, C.A no 312/2009, the Court of Appeal took judicial notice of the fact that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern of the bereaved family is that a close relative has died and the body needs to be interred according to the custom of a particular community involved. Being guided by the above decision, I hold that the Trial Court did not misdirect itself in making the award on special damages.

36. The upshot is that the appeal herein lacks merit and the same is dismissed with costs to the respondents. It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 7TH DAY OF OCTOBER, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Nasimiyu h/b for Ms Okata for the appellantMs Layoo h/b for Mrs Kabole for the respondentsMr. Oliver Musundi – Court Assistant.