[2017] KEHC 1282 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 213A OF 2013

BENARD KARANJA................................................................1ST APPELLANT

TIMOTHY MUSILA.................................................................2ND APPELLANT

VERSUS

J M K

E M N (suing for and on behalf of

the Estate of M K N (Deceased)..............................................RESPONDENT

(An appeal arising out of thejudgment of Hon. P.N Gesora SPMdelivered on 20th November 2012 in Machakos Chief Magistrate’s Court Civil Case No. 279 of 2010)

JUDGMENT

Introduction

The Respondents herein, by a Plaint dated 19th February 2010 and filed in the trial Court on 28th April 2010, sued the Appellants seeking recovery of damages arising from an accident alleged to have occurred on 1st August, 2009. The Respondents’ case was that on 1st August, 2009, M K N (since deceased) was lawfully walking along Kaani – Kathiani road, when the 2nd Appellant drove the 1st Appellant’s motor vehicle registration number KBA 661A carelessly that it veered off the road and knocked the deceased occasioning him fatal injuries. The Respondents were the Plaintiffs in the trial Court, while the 1st and 2nd Appellants were the 1st and 2nd Defendants therein.

The Appellants thereupon filed a joint Defence in the trial Court dated 3rd May 2010, denying the allegations in the Plaint. The suit proceeded to full hearing, and on 20th November 2012, a judgment was delivered in favour of the Respondent, in which the trial court awarded him Kshs 846,690/= as damages upon apportioning liability at the ratio of 40:60 between the Respondents and the Appellants for the accident that occurred 1st August, 2009.

The Appellants subsequently moved this Court through a Memorandum of Appeal dated 18th December 2012, wherein they raised the following grounds:

a) That the learned trial magistrate erred in fact and law by failing to dismiss the case with costs.

b) That the learned trial magistrate erred in law and fact by awarding the plaintiff liability at 60 % which was against the weight of the evidence.

c) That the learned magistrate erred in law and fact by failing to find that the deceased was the cause of the accident.

d) That the learned magistrate erred in law and fact by failing to find that the Appellants were not liable at all.

e) That the magistrate erred in law and fact by making an award on general damages which was manifestly excessive and inordinately high.

f) That the learned magistrate erred in law and fact by failing to take into account the evidence and the submissions on quantum of damages given on behalf of the Appellants while considering his judgment.

g) That the learned magistrate erred in law and fact by failing to apply proper legal principles regarding quantum and thus arriving at a bad decision.

h) That the learned magistrate erred in law and fact by awarding special damage in absence of proof thereof.

i) That the learned magistrate erred in law and fact by disregarding the evidence of the Appellants and considering extrinsic matters thereby failing to judiciously exercise his discretion.

j) That the learned magistrate erred in law and fact in awarding costs to the Plaintiff when demand and notice has been declined and not proved in evidence.

The Appellants are praying for orders that the appeal be allowed with costs, the lower Court’s judgment on liability and damages be reassessed and order for costs be vacated, and that costs of the appeal be awarded to the Appellants.

It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts, and come up with its findings and conclusions. See in this regard the decisions in this respect Jabane vs. Olenja [1986] KLR 661, Selle vs Associated Motor Boat Company Limited[1968] EA 123 and Peters vs. Sunday Post[1958] E.A. 424. The duty of this Court is therefore to examine and re-evaluate the evidence in, and findings of the trial Court, and to reach its own independent conclusion as to whether or not the findings of the trial Court as to liability and quantum of damages should stand.

I will therefore firstly proceed with a summary of the facts and evidence given in the trial Court. It was pleaded by the Respondents that the deceased died at the age of 33 years leaving behind J N (father aged 74 years), E M N (mother aged 57 years), J M K (wife), and his children V W K (8 years), M K (7 years), N K (5 years), M K (4 years) and M K(2 years).

Further, that the Deceased was a casual labourer who was able bodied. In addition, that the Respondents incurred costs of KShs. 20,000 for burial expenses, KShs. 150/- for the police abstract, and KShs. 1,200/- for letters of administration. The Respondents sought damages both under the Fatal Accidents Act and the Law Reforms Act.

During the hearing, the deceased’s wife J M (PW1) produced a death certificate (P. Exhibit1), search certificate (P. Exhibit 3), grant (P. Exhibit 4), birth certificates and notifications (P. Exhibit 5) and receipts (P. Exhibit 6). She stated that the deceased used to earn KShs. 800/- per day and gave her KShs. 4,000/- per month. She also stated that the 2nd Plaintiff was her mother-in-law.

Benjamin Kioko (PW2) recounted that he and the deceased had on the material day alighted at Kaani. When walking on the murram road, a lorry suddenly emerged and hit the deceased. Further, that the lorry entered the murram road from the Machakos-Kitui road. He stated that the lorry was on high speed and that the deceased died on the spot. He testified that the deceased was a casual labourer at Mlolongo who was paid KShs. 800/- per day. On cross examination, PW2 stated that there was no side walk on the murram road, and that the deceased was hit by the left hind carriage and fell between the two hind wheels.

PC Daniel Chacha (PW3) confirmed the occurrence of the accident. He stated that the driver of the lorry drove over bumps and hit the deceased who died on the spot. He stated that no one was prosecuted with a traffic offence since there was no sufficient evidence. He produced a police abstract as P. Exhibit 2.

The Respondents called Timothy Musila (DW1) who testified that he was in the company of two turn boys and was driving from Nairobi, and that on getting to a bump at Kaani as he slowed down, when he saw two young men who were pulling one another. Further, that he suddenly heard a scream. He stopped and found that one of the two men had been injured. He stated that the visibility was clear, and blamed the deceased and his brother since they were pulling each other on the road. On cross examination, he stated that there was no other vehicle on the road, and that he was on the left side of the road and the deceased and his brother were off the road.

The Issues and Determination

The Appellants and Respondent canvassed the present appeal by way of written submissions. Kinyanjui Njuguna & Co Advocates for the Appellants filed submissions dated 21st July 2017, while the Respondent’s Advocates, Kalinga & Company Advocates , filed submissions dated 2nd August 2017.

From the grounds of, and relief sought in this appeal, and the submissions made thereon by the parties, it is evident that the Appellants are contesting the findings of the trial Court on liability and quantum of damages.

On the issue of liability, the Appellants submitted that the driver of the motor vehicle registration number KBA 661A was not charged with the offence of causing death by dangerous driving, and had already by passed the deceased when the accident occurred and was therefore not to blame for the accident. The Appellants cited the decision in Jamal Ramadhan Yusuf & Another vs Ruth Achieng Onditi & Another (2010) e KLR for the argument that the mere fact that the accident occurred did not presuppose that the driver was to blame.

The Respondents on their part submitted that the fact that the Appellants’ motor vehicle’s rear left tyres ran over the deceased, and that the driver of the motor vehicle was driving one foot from the edge of the road as a result of which the body of his motor vehicle hit the deceased who was a pedestrian, was sufficient evidence of negligence on the Appellants’ part.

It emerged from the evidence on record that the deceased was knocked while walking on the road. The road was said to be a murram road which did not pedestrian walk. Although the 2nd Appellant claimed that he was driving at a reasonable speed, he knocked the deceased in an area where there is a bump. The 2nd Appellant testified in this regard that he had just gone through a bump before he hit the deceased. It is common knowledge that a vehicle ought to slow down on a bump, and if the 2nd Respondent was truly at a slow speed he could have managed the vehicle and avoided the accident.

I therefore find that the Respondent did prove on a balance of probabilities that the Appellants were substantially to blame for the accident that occurred on 1st August 2009 involving their motor vehicle registration number KBA 661A. However, the deceased who was a pedestrian on that road also owed other road users including the Appellant a duty of care and should shoulder liability. He was however hit when he was off the road. In my view therefore liability as apportioned by the trial court was reasonable in the circumstances and I find no reason to interfere with it. The trial court’s decision on liability is thereby upheld.

On the quantum of damages awarded by the trial Court, the Appellant urged that the trial Court applied the minimum wage in arriving at the Deceased’s earnings of Ksh 8,000/= per month, and failed to consider the evidence of the deceased’s wife that he used to give her 4,000/= per month which should have been adopted as the multiplicand. Further, that the Court did not consider double enrichment when it awarded damages to the same persons under the Law Reform Act and Fatal Accidents Act. Reliance was placed on the decision in Lucy M. Njeri vs Fredrick Mbuthi & Another, (2006) e KLR in this regard.

The Respondents in response submitted that the amount of Kshs 4,000/= cannot be the multiplicand considering that the Deceased also had to maintain himself at Mlolongo where he worked. Reliance was placed on the decision in Waceke Wahinya vs Kenya Tea Development Authority, Nairobi H.C. Civil Appeal No. 486 of 2008 that the proper multiplicand to apply in the case of a casual labourer is the gazette minimum wage at the time.

In addition, that the issue of double enrichment was never raised by the Appellants in the trial Court, and that in any event, apart from his wife and children who were wholly dependent on him , the deceased was also survived by his mother and father who are entitled to benefit under the Law Reform Act.

It is an established principle of law that that an appellate court will only interfere with quantum of damages where the trial court either took into account an irrelevant factor or left out a relevant factor, or where the award was too high or too low as to amount to an erroneous estimate, or where the assessment is not based on any evidence (see Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727, Peter M. Kariuki v Attorney General CA Civil Appeal No. 79 of 2012 [2014]eKLRandBashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

In the present appeal, the trial magistrate awarded damages for pain and suffering of Kshs 10,000/=; for loss of expectation of life of Kshs 120,000/=; for loss of dependancy of Kshs 1,280,000/=, and special damages of Kshs 1150/=, less 40% on account of the deceased’s contributory negligence.

Damages for pain and suffering are recoverable under the Law Reform Act, if a deceased person suffered pain and suffering as a result of his injuries in the period before his death. In addition a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life.

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 Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case, PW2 testified that the deceased died at the scene of the accident and I find that the award by the trial Court of Kshs 10,000/= for pain and suffering and Kshs 120,000/= for loss of expectation of life was reasonable in the circumstances.

On the submissions by the Appellants that the damages awarded under the Law Reform Act be subtracted from the award made under the Fatal Accidents Act on account of double enrichment, I am guided by The law and practice where a claimant get awards for loss of life both under the Law Reform Act and the Fatal Accidents Act as explained by the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited[2015] eKLR as follows:

“20. 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 Actand dependants under the Fatal Accidents Actare 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 Actshould 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.

21. The confusion appears to have arisen because of different reporting of the Kenfro case (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decidendiis extracted from the unanimous decision of all three Judges. It was held, inter alia, that:-

“6. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.

7. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.

8. The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”

I note in this regard that the evidence by PW1 was that the Deceased used to support her and their five children, and in addition it was pleaded that he supported his parents. There were thus other beneficiaries of his estate who will benefit from the award of loss of expectation of life, other than the dependants getting compensation under the Fatal Accidents Act.

On the award of damages for loss of dependency under the Fatal Accidents Act, it is necessary to determine the deceased’s income, the dependency ratio of his dependants and the multiplier to be used. The manner of assessment of damages for loss of dependency was aptly explained by Ringera J. (as he then was)inBeatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No. 1638 of 1988 as follows;

“The principles 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. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

The evidence by the Respondents was that the deceased was a casual labourer earning KShs. 800/= per day, with which he supported his family as the sole bread winner. In the circumstances the use of the minimum monthly wage of 8,000/= by the trial Court was reasonable as no evidence was produced by the Respondents to prove the daily earnings.

In addition the dependency ratio of 2/3 suffices in light of the evidence as to his dependants, and as the deceased was 33 years of age at the time of his death, it is possible he could have worked for another 20 years considering the vicissitudes of life and as the official retirement ages vary between 55 and 65 years. The multiplicand and multiplier used by the trial Court of Kshs 8000/= per month for 20 years in arriving at the award of loss of dependancy of Kshs 1,280,000/= was therefore reasonable.

Lastly, in the award of special damages, the Respondents produced receipts for police abstract and letters of administration and was awarded KShs. 1,150/= which was pleaded and proved. The Respondents also pleaded funeral expenses which were not supported by receipts, and the trial Court was not in error in excluding the said costs in line with the applicable principle that for special damages to be awarded, they must be specifically pleaded and also strictly proved as held in Maritim & Another –v- Anjere (1990-1994) EA 312.

I therefore dismiss the Appellants’ appeal for the foregoing reasons with costs to the Respondents.

It is so ordered.

DATED AT MACHAKOS THIS 3RD DAY OF OCTOBER 2017.

P. NYAMWEYA

JUDGE