[2018] KEHC 5014 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

CIVIL APPEAL CASE NO. 65 OF 2016.

BENARD CHUAGA ....................................................................... APPELLANT

VERSUS

PATRICK JUMA WEBO (Suing as the administrator& legal representative

ofthe estate ofHENRY WANYONYI JUMA (Deceased)....... RESPONDENT

[An Appeal for Judgment and Decree in Original Bungoma CMC 110/2014 delivered on 8. 6.2016 by C.L. YALWALA Senior Resident Magistrate].

JUDGMENT

The Plaintiff/Respondent Patrick Juma Webo suing as administrator of the estate of Henry Wanyonyi Juma (deceased) filed a suit in the Magistrate's Court against the Appellant/Defendant Benard Chuaga seeking for Judgment for general damages, special damages of Kshs.81,500/= and costs of the suit under the Law Return Act and Fatal Accident Act arising from the death of the deceased in a road Traffic Accident involving Motor Vehicle Reg. No. KBB 979P owned by and driven by the defendant and/or his agent.

The parties recorded a consent on liability on 1. 4.2016 where Judgment on liability was entered in favour of the Plaintiff as against the defendant at 80% to be borne by the Defendant/Respondent and 20% to be borne by the Plaintiff/Respondent. The court was to assessment quantum of damages.

By Judgment dated 8. 6.2016 the learned trial magistrate rendered himself as follows.

I find that a multiplier of 28 years is reasonable. Accordingly, I find that in the circumstances of this case the damages payable for loss Dependancy by a multiplier of Kshs.15,000/= to a multiplier of 28 years and dependency ratio of 2/3 is reasonable. The same thus works out as hereunder;

Kshs.15,000 x 12 x 28 x 2/3 = Kshs.3,360,000. In this case, the deceased Dependant are also beneficiaries of the estate. They are thus the same one who shall benefit of the sum of Kshs.200,000/= awarded here about for loss of expectation of life. Accordingly, in order to avoid double compensation, I deduct Kshs.200,000/= from the award of loss of dependancy above and award Kshs.3,160,000/= for loss of dependancy.

(d). Special damages/funeral expenses:

The Plaintiff pleaded Kshs.81,500/= special damages. At the hearing of the case herein he produced receipts amounting to Kshs.51,000/= as hereunder;

Kshs.15,000/= for limited grant, Kshs.17,500/= for coffin, Kshs.18,000/= for transport, Kshs.500/= for copy of records. That is the amount the advocate submitted for in his written submissions. I find that the same has been proved as pleaded and allow and award the same i.e Kshs.51,000/= for special damages. In the upshot Judgment is hereby entered for the plaintiff against the Defendant at 80% liability was hereunder:

a). Pain and suffering Kshs.50,000/=

b). Loss of expectation of life Kshs.200,000/=

c). Loss of dependency Kshs.3,160,000/=

d). Special damages Kshs.51,000/=

Kshs.3,461,000/=

Less 20% Liability Kshs.692,200/=

Kshs.2,768,800/=

The defendant shall thus pay to the plaintiff the sum of Kshs.2,768,800/= plus interest thereon at the court rate as applicable on general damages and special damages until full payment as well as the cost of the suit.

Dissatisfied with the said decree the appellant presented this appeal on the following grounds.

1. THAT the learned trial magistrate erred in law/or fact in failing to consider the defendant's submissions when making his Judgment.

2. THAT the learned trial magistrate erred in law/or fact in using a multiplicand on income as Kshs.15,000/= where there was no proof of earnings given.

3. THAT the learned trial magistrate erred in law and/or fact in awarding the plaintiff Kshs.2,768,800/= as general damages which amount is excessive and unreasonable.

4. THAT the learned trial magistrate erred in law and/or fact by not considering the facts of the case.

By Consent Counsel for both parties filed respective submissions. Counsel for the applicant submitted that the honourable magistrate erred in law and in fact in adopting a multiplier of Kshs.15,000/= as the deceased earning without proof of earnings, the respondent too herein never proved that the deceased was in gainful employment. The court should have given a modest figure of Kshs.10,000/=. He further submitted that in as per Makhandia J inKisii Civil Appeal No. 68 of 2005 (2011) KLR Nyamira tea farewell Sacco Vs. Wilfred Nyambati Keraita & Another in absence of proof of earnings, the trial magistrate ought to revert to Regulation of wages (general amendment) orders. He further submitted that the multiplicand is the net income of the deceased and therefore court ought to reduce the sum by deducting known taxes where applicable and statutory taxes. In this case the Honourable magistrate's finding did not consider the same. Finally he submitted that the court should have considered a multiplier of Kshs.10,000/= less the aforesaid deductions.

Mr. Mukisa Counsel for the respondents submitted that; the Appellant had proposed Kshs.10,000/= as a multiplier and 28 years as the multiplicand whilst the Respondent proposed Kshs.15,000/= as the multiplier and 33 years as the multiplicand.

The trial court adopted Kshs.15,000/= as the multiplier and 28 years as the multiplicand. The appellant challenged the multiplier of Kshs.15,000/= considering that the same appellant proposed Kshs.10,000/= and that the figure of Kshs.15,000/= reasonable as this translates to Kshs.500/= per day considering the deceased was a sales man. In ground No. 3 of the record of appeal the Appellant challenged the award of Kshs.2,768,800 as excessive however this was in line with the submissions of the Appellant on where the Appellant proposed Kshs.2,548,000 and that this figure is not unreasonable neither is it excessive.

The parties having filed a Consent on liability. The only issue in this appeal is on the quantum of damages. The principles on which an appellate court will disturb an award in damages are fairly well settled. The principle is that an appellate court will only interfere with an award of damages if it was satisfied that the award is inordinately low or high, or that the trial court court took into account irrelevant factors in assessing the damages. In Butt -Vs- Khan Civil Appeal No. 40 of 1997, the court

stated that:

“An appellate court will not disturb an award of damages unless it is so 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 arrive at a figure which was either inordinately high or low” See also Kemfro Africa Ltd and Another -Vs- A.M. Lubia & Another (1982 – 1988).

Apportionment of liability was settled by Consent to be 80:20. The issue here is on the degree of award given under the various heads. Starting with the one under loss of dependency.

Loss of dependency:

The appellant argues that the multiplier used by the trial court of Kshs.15,000/= in excess given that there was no proof of earnings. The trial Magistrate while addressing himself under the head stated that:

“The Plaintiff testified that, the deceased was a salesman earning Kshs.18,000/= per month. There is however no documentary proof of the earning. The fact that he was salesman was however not controverted. In his written submissions, the plaintiff advocate propose that the sum of Kshs.15,000/= be adopted as the deceased monthly earnings. That translates to about Kshs.500 per day. I find that to be reasonable amount that a man with a wife and 3 children would expect to earn daily in order to take care of that family.”

The trial court noted that the deceased had a wife and 3 children who needed to be taken care of. However, there was no proof of income and court settled on a multiplier of Kshs.15,000/= as reasonable enough. In the case of Jacob Ayiga Mauja & Another -Vs- Simeon Obayo CA167/20092005] Eklr where the Court of Appeal rendered itself on the question of failure to adduce proof of income. It stated as follows:

“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence an prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed”.

The appellants main issue is that the learned trial magistrate adopted a multiplier of Kshs.15,000/= as the deceased’s earning without proof of earning. It is not disputed that deceased was at time of death working as a salesman and according to the Respondent earning Kshs.18,000/= per month, which the Respondents in their submissions urged the trial Magistrate to adopt as a multiplier. The appellant in their submission by M/s Korango, Advocate filed in court on 11. 5.2016 urged the applicant through court to adopt a sum of Kshs.10,000/= per month as earning. It is always desirous that a trial court should indicate the basis of the assessment of earnings where documentary evidence of earnings is not proved, I am persuaded that the sum of Kshs.15,000/= per annum as earning of a salesman is reasonable and not far beyond what the appellants had proposed.

In the result, I am not persuaded that the damages assessed by the trial magistrate was so high or so low as to represent an erroneous estimate or that he proceeded on wrong principles, I therefore find no merit in this appeal which is hereby dismissed with costs.

Dated at Bungoma this 18th day of July, 2018.

S.N. RIECHI

JUDGE