[2021] KEHC 9147 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CIVIL APPEAL NUMBER 77 OF 2018

(Being an appeal from the Judgement of Hon .

Munguti -Senior Principal Magistrate delivered

on 15th August, 2018 at the Senior Magistrate’s

Court of Kenya in Kitui Civil Case Number 209 of 2005)

BENJO TRAVELLERS (K) LTD...........................APPELLANT/APPLICANT

VERSUS

JUSTUS KAMENYA MWASYA

(suing as Legal Representative of the

Estate Kavilenge Kamenya (Deceased)

KAVILENGE KAMENJA (DECEASED)...........................1ST RESPONDENT

BENJAMIN MAINA KIHORO.......................................3RD RESPONDENT

J U D G E M E N T

1. This appeal arose from the judgment of Hon. J. Munguti Principal Magistrate delivered on 15th August 2018 vide Kitui Chief Magistrate’s Court Civil Suit No.209 of 2005. In that suit Justus Kamenya Muasya (the Respondent herein suing as a legal representative of Kavilenge Kamenya (deceased) sued the Benjo Travellers (K)Ltd the Appellant herein and one Benjamin Mavina Kiherofor tort of negligence attributed to the Appellant and co-defendant by the Respondent due to a road traffic accident involving motor vehicle Registration No. KAQ 298 E owned by Benjamin Maina Kihoro (who was the 1st defendant) and motor vehicle KAK 069 H owned by the Appellant herein.

2. The trial court evaluated the evidence tendered and found both defendants equally liable notwithstanding the fact that the Appellant failed to file any defence. The deceased aged 25 years at the time of his demise was found to have been earning a monthly salary of ksh.4500/=. The trial court further adopted that a multiplicard of 25 years given the age of the deceased and vicissitudes of life and used a dependency ration of ½ given his humble wages. The total award given by the trial court was as follows: -

a) Pain and suffering …………………Ksh.150,000

b) Loss of expectation of life…………Ksh.180,000

c) Loss of dependency ………………..Ksh. 67,500

d) Special damages …………………………..Nil.___

Total 1,005,000/=

3. The Appellant herein file aggrieved by the above award and preferred this appeal raising the following grounds namely:

(i) That the learned magistrate erred in law and fact in assessment of damages which in its view was manifestly excessive.

(ii) That the Hon. Magistrate erred in law and fact in adopting a dependency ration of 2/3 and multiplier of 25 years in total disregard of the Appellant’s submissions on the ration applicable to the facts of the case.

(iii) That the Hon.Magistrate erred in law and fact by disregarding the Appellant’s submissions on the quantum of damages to be awarded.

4. In its written submissions through counsel M/s J. Makumi & Co. Advocates, the Appellant submits that there is no dispute or contest over the trial court’s finding on liability and the fact that the deceased died at the scene of the accident aged 25 years old.

5. The Appellant contends that the award on pain and suffering of Ksh.150,000/= was excessive and submits that an award of ksh.10,000/= would have been sufficient asserting that the trial could should have been moderate in making the award under this head because the deceased died the same day after the accident. It relies on ROSE –VS- FORD (1937) AC 826. It further contends that where the death is prolonged an award of ksh.100,00would suffice and has relied on the case NELSON N. KIOKO –VS- MOMBASA LINERS & ANOTHER (2017) where the court held that as a general principle, a nominal award is usually given under pain and suffering if the death is not prolonged after an accident. The court then awarded Ksh.10,000/= for pain and suffering and ksh. 100,000= for loss of expectation of life.

6. On loss of expectation of life, the Appellant contends that the award of Ksh. 180,000/= was high and submits that an award of ksh.100,000/= would have been appropriate and has relied on the case of BENEDETA WANJIKU KIMANI –VS- CHANGWON CHEKOI & ANOTHER [2013] Eklr and PATRICK KALAVA KULAMBA & 2 OTHERS -VS- PIL & ANOTHER [2019] eKLR where both court upheld an award of Ksh.100,000/= for loss of expectation of life stating that the same was fair.

7. On dependency ratio, the Appellant contends that no evidence was led to the deceased used to support the name dependants adding that the deceased used to support the named dependants adding that the deceased was unmarried. It submits that a dependency ration of a 1/3 should have been given.

8. The Appellant further submits that where the people entitled to the deceased estate are the same persons for whose benefit the action under Fatal Accident Act Accident is brought, the award of loss of expectation the life is deductible. It urges this court to deduct Ksh. 100,000/= from the award on loss of dependency which it submits should calculated as follows: -

4,500 x 12 x 25 x 1/3 = 450,000/=

In total the Appellant submits that the Respondent deserves the following award: -

Pain and suffering……………………………………10,000/=

Loss of expectation of life …………………………. 100,000/=

Loss of dependency…………………………………….450,00/=

Total 560,000/=

Less 100,000/=

Total 460,000/=

Court urges this court to apportion liability as held at the trial court.

9. The Respondent on the other hand has opposed this appeal. He has supported the trial court in its finding and the awards on various heads. He has through written submissions by his Learned M/s Counsel Mulu & Company Advocate submitted that the deceased earned ksh.4,500/= per month as per the evidence tendered during trial. He further asserts that the deceased supported his parents from his minimal income and supports the trial court’s finding that he used 50% of his income to support his parents. He submits that the award of ksh. 675,000/= on loss of dependency is justified.

10. On the award of pain and suffering, the Respondent asserts that the award of Ksh.150,000/= given by the trial court was proper in the circumstances. He relies on the authorities in the following cases: -

(i) Adan Abdi Noor (deceased) –vs- Sigma Feeds (Nairobi HCC No.47 of 2003)

(ii) Nelson N. Kioko & others –vs- Mombasa Liners & Another (Machakos HCC No.211 of 2000)

(iii) He submits that in the above 2 cases courts awarded ksh. 150,000/= and ksh. 100,000/= respectively for pain and suffering. He urges this court to uphold the award given in the lower court taking into account the inflationary trends in this county and the circumstances of how the accident occurred.

11. On the award on loss of expectation of life, the Appellant submits that the deceased dies at an early age and that the award given of ksh.180,000 under this head was not inordinately high. He has urged this court not to disturb the award on this score and relives on the decision of John Wamae & Others –vs- Jane Kituku Nziva and Another [2017] Eklr where the court held 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 or that the trial court proceeded on wrong principles in arriving at an erroneous figure.

12. The Respondent has urged this court to find that no compensation is enough to replace a lost life and that the award given by the trial was justified as the Appellant in his view has not shown that the trial proceeded on wrong principle.

13. This court has considered this appeal and the submissions made by both counsels. It is not contested that Kivengele Kamesa (deceased) died on 25th March, 2005 as a result of a road traffic accident involving motor vehicle registration No. KAQ 298 E and KAK 069H. According to the evidence tendered by his father, the Respondent herein, his son dies on the way to hospital.

14. The mandate of this court as the first Appellate court is to re-assess and re-evaluate the evidence tendered and come to won conclusion in regard to the decision reached by the trial court.

15. On the question of pain and suffering, while the Appellants has faulted the award of ksh.150,000/= as being too high, the Respondent has supported the said award. This court has considered the evidence tendered and while it is certain that the deceased died on the same day as he was being rushed to hospital, it is unclear as to how long he took before succumbing to the injuries. The length of time a deceased takes before dying as a result of an accident is usually material in determining the award on pain and suffering. The trial court in this instance apparently based its decision on the precedents in the cases of Hyder Nthenya Musili (supra) Nelson N. Kioko & Another -vs- Mombasa Liners [2012] eklr. In Nelson N. Kioko the court found that the deceased died on the same day of the accident and though the death was not instant, the court found that 100,000/= was fair and just on the assumption that the deceased must have experienced excruciating pain. InHyder Nthenya Musili, the court found that an award of ksh.10,000/= for pain and suffering was appropriate given that the deceased died instantly after the accident.

16. In this instance as I have observed above there is no evidence to pin point the exact time the deceased passed on. The evidence tendered leaves one to rely only on assumptions. The trial court relied on Nelson N. Kioko (supra) to assume that the deceased must have suffered considerable pain as he was being rushed to hospital before succumbing on the way. This court finds that the trial court was not at fault to do so.

17. This court however finds that the award of Ksh.150,000/= for pain and suffering was rather on the higher side given the uncertainly on the period of time the deceased took before succumbing to the injuries. In view of the decision in Nelson N. Kioko, this court finds that an award of Ksh.100,000/= would have been sufficient under pain and suffering.

18. This court also finds that he award given under loss of expectation of life is rather high going by the precedents in the recent past. In Hyder Nthenya Musili (supra) and in the case of Havjeet Singh Pandal –vs- Hellen Aketch Okudho [2018]eklr among others, the courts awarded ksh.100,000/= for loss of expectation of life. This court is therefore inclined to find that an award of ksh.100,000/= under that head would have been appropriate. I am however not persuaded that the amount of Ksh.100,000/= is deductible on the basis that the same person(s) have been compensated under Law Reform Act for loss years or dependency. The argument by the Appellant in my considered view lacks legal backing as there is not law that specifies that once a dependent is compensated under Fatal Accident Act, he cannot be compensated under Law Reform Act.

19. I have considered the appellant’s contention that the dependency ration of a half used by the trial court was wrong given that conventionally courts have taken the position that unmarried people are more likely to spend more on themselves than their parents and therefore the dependency ratio of a half used by the trial court was wrong and therefore the dependency ratio of a half used by the trial court was wrong and therefore the dependency ratio of a third is more appropriate. This court finds the above contention well-grounded Kshs. 4,500/=. The deceased was a young man aged 25 years and unmarried. With that kind of salary one would be too optimistic to imagine that he was sending home more than Kshs. 1000/= every month. I find that 1/3 ration was the only plausible ratio to be used. In that regard I have no hesitation to find that the ratio of a half adopted by the trial court was erroneous in the circumstances. In the end and for the reasons advanced this court finds that this appeal partly succeeds. The award made by the lower court is set aside and the following award is given: -

(a) Pain and suffering…………………….Ksh.100,000

(b) Loss of expectation of life…………..K sh.100,000

(c) Loss of dependency

4500 x 1/3 x 12 x 25 = 450,000

Total Kshs. 650,000

The finding on liability by the trial court is upheld. The Respondent shall have costs in the lower court and interest of the awarded sum from the time the judgment was delivered in the lower court. The Appellant shall have half costs in this appeal to be agreed or taxed.

Dated, Signed and Delivered at Kitui this 26th day of January, 2021.

HON. JUSTICE R. K. LIMO

JUDGE