[2017] KEHC 9624 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT ELDORET

CIVIL APPEAL NO. 120 OF 2012

CHARLES KIMUTAI RONOH….......................................................APPELLANT

VERSUS

JANE ATIENO (Suing as the legal

representative ofERIC JOEL OMOLO ASIRA).....................RESPONDENT

[Being an appeal from the original judgment of C. M. Mbogo, Chief Magistrate,

(as he then was) in Eldoret CMCC No. 129 of 2011 delivered on 19th October 2012]

JUDGMENT

1. This appeal is on quantum of damages for the tort of negligence. Liability was settled by consent in the ratio of 70% to 30% in favour of the respondent.

2. It was pleaded that on 9th October 2008, the deceased, Erick Asira, was riding on a bicycle as a pillion passenger along Moi University-Kesses Road. The appellant’s motor vehicle registration number KAN 548B knocked him down. He died as a result of the injuries. The deceased’s mother, Jane Atieno, brought proceedings on behalf of the estate. The respondent blamed the appellant’s driver for the accident.

3. The learned trial magistrate assessed general damages for loss of expectation of life at Kshs 100,000; pain and suffering at Kshs 10,000; loss of dependency at Kshs 3,945,000; and, special damages at Kshs 151,250. The net award after deducting the sum for loss of expectation of life and 30% contributory negligence was Kshs 2,874,375. The respondent was also granted interest and costs.

4. The appellants filed a memorandum of appeal on 9th November 2012. It raises five grounds. They can be condensed into three. First, that the award under the head ofloss of dependency was exorbitant. In particular, the learned trial magistrate applied an erroneous multiplicand of Kshs 26,300 and a wrong dependency ratio of a ½. Secondly, that the learned trial magistrate disregarded the evidence and submissions by the appellant; and, thirdly, that the learned trial magistrate employed wrong principles in assessing damages.

5. At the hearing of this appeal, learned counsel submitted that the respondent was an unemployed student. He said that a letter showing the respondent was earning Kshs 26,300 per month was procured three months after the accident. It was not clear whether the amount was net of taxes. Counsel was of the opinion that the salary was not proved; and, that the better course would have been to apply the minimum wage of Kshs 7,000. He submitted further that the respondent was not married. In the body of the judgment, the learned trial magistrate opined that the correct dependency ratio was 1/3. However, in the penultimate paragraph, the learned trial magistrate applied a dependency ratio of ½. He submitted that the award was too high as to disclose an error of principle.

6. The appeal is contested by the respondent. The respondent’s submissions were on a three-strand. First, that the salary was proved. Secondly, that the evidence on loss of earnings was unchallenged; and, thirdly, that there is no basis for the appellate court to interfere with the discretion of the learned trial magistrate. The only concession made was that the correct dependency ratio was 1/3. But even then, counsel was of the opinion that the error could have been cured by review of the judgment. I was implored to dismiss the appeal.

7. This a first appeal to the High Court. It is thus an appeal on both facts and the law. I am required to re-evaluate all the evidence on record and to draw independent conclusions. There is a caveat because I have neither seen nor heard the witnesses. See Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] E.A 123, Williamson Diamonds Ltd v Brown [1970] EA 1, Mwanasokoni v Kenya Bus Services Ltd[1985] KLR 931.

8. As a general rule, an appellate court will not interfere with quantum of damages unless the award is so high; or, inordinately low; or, founded on wrong principles. SeeButt v Khan [1982-88] KAR 1, Arkay Industries Ltd v Amani [1990] KLR 309, Karanja v Malele [1983] KLR 42, Akamba Public Road Services Ltd v Omambia Court of Appeal, Kisumu, Civil Appeal 89 of 2010 [2013] eKLR.

9. I have studied the record. On 13th September 2011, the parties consented on liability for the accident in the ratio of 70% to 30% in favour of the respondent. There is no serious contest that the deceased was attending evening classes; and, that he was unmarried.

10. It does not necessarily follow that a student cannot maintain employment. The respondent (PW1) was the mother of the deceased. She is the legal representative of the estate by dint of a grant issued by the High Court on 27th January 2010 (exhibit 1). She testified that the deceased was a form four graduate. He completed school in 2007. She said he was employed by Fajihd Enterprises in August 2008. She testified that he was earning Kshs 26,300 per month; and, that he gave her Kshs 7,000 every month. She was unable to explain whether there were statutory deductions on the salary. She conceded that the death certificate indicated the deceased was a student.

11. There is then the evidence of PW2. He was carrying the deceased on his bicycle when the accident occurred. He said they were friends. He testified that the deceased “used to work at computer service at Moi University”. He said the deceased told him that he used to earn Kshs 36,000 per month. On cross examination, he said he used to work at a computer stationery shop at Moi University. The business was known as Kuyuliendo. He conceded that he never worked at Faith Enterprises.

12. On 14th September 2012, PW1 was recalled to the stand. She said the letter from Fajihd Enterprises was authored by one Christine Odinga on 1st December 2008. She said the latter had travelled to South Africa; and, that the business was no longer in operation.

13. The defendant did not call any witnesses in the lower court. From the evidence of PW1 and PW2, it is clear that the deceased was a part time student. I accept the uncontroverted evidence that he was working. I have looked at exhibit 4, the letter from his employer at Fajihd Enterprises. The letter was authored on 1st December 2008; two months after the accident. It states in the relevant part-

“At the time Joel died, he was earning a total of Kshs 26,300 per month. This was inclusive of payments from the training sessions he used to give to students. This salary was to be reviewed in October 2008”

14. In the present case, no pay slips were produced indicating whether statutory deductions were made. It was thus unclear whether the sum was the net salary. The author of the employment letter was said to have travelled out of jurisdiction. The letter was obtained well after the death of the deceased. PW2 said the deceased used to earn Kshs 36,000. Combinations of all those facts create doubt about the actual earnings of the deceased. But the appellants didnot call any evidence in rebuttal. There was no evidence that the letter was a forgery either. There is also the evidence from PW1 that the deceased used to support her with Kshs 7,000 per month. Granted the circumstances, I agree with the learned trial magistrate that the salary of Kshs 26,300 was unchallenged.

15. In assessing damages under the Fatal Accidents Act, the court must be guided by the age of the deceased, life expected, vicissitudes of life and the acceleration of the lump sum payment. See Kemfro v Lubia [1982-88] KAR 727, Rev. Fr. Leonard O. Ekisa & another v Major Birge [2005] eKLR.

16. The deceased was aged 20 at the time of his death. The learned counsel for the appellants submitted in the lower court for a multiplier of 15. The respondent’s view was that 30 years was reasonable. The lower court adopted a multiplier of 25 years. I cannot say that the multiplier was too high considering the vicissitudes of life. I will not disturb it.

17. From what I have said, it is not true that the appellant’s submissions were completely disregarded. Final submissions are only for the guidance of the court: they are unlike pleadings. There is no requirement that each and every submission or authority tendered be revisited by the trial court in its judgment. See Joshua Shitawa v Kishan Builders Limited, High Court, Eldoret, Civil Appeal 32 of 2012 [2015] eKLR. That ground of appeal fails.

18. I will now turn to the dependency ratio. The deceased’s mother was the sole dependent. The respondent’s counsel freely conceded that it was erroneous to apply a dependency ratio of ½. Like I said earlier, in the body of the judgment, the learned trial magistrate opined that the correct dependency ratio was 1/3. However, in the penultimate paragraph, the learned trial magistrate applied a dependency ratio of ½. I thus find that the correct dependency ratio is 1/3.

19. The arithmetic would thus work out as follows: Kshs 26,300 x 12 x 25 x 1/3 = Kshs 2,630,000. But that is not all. The learned trial magistrate failed to cater for acceleration. I will reduce this sum by 20% to cater for acceleration of the lump sum payment. See Kemfro v Lubia [1982-88] KAR 727. That leaves an award for loss of earnings of Kshs 2,104,000.

20. This claim is brought under both the Law Reform Act and the Fatal Accidents Act. The deceased died on the spot. The lower court awarded general damages for pain and suffering at Kshs 10,000. That award is not inordinately highand keeps with latest trends on the subject. See generally, Radhakrishnan Khamaney v Murlidhar [1958] E.A 268. I uphold the award.

21. The learned trial magistrate awarded the respondent a further sum of Kshs 100,000 for loss of expectation of life. Again, that award keeps with latest trends on the subject. Furthermore, it makes little difference because the amount will have to be discounted against the award under the Fatal Accidents Act. SeeKemfro v Lubia [1982-88] KAR 727. The rationale is that all these amounts end up in the same estate.

22. It is trite that special damages must be specifically pleaded; and, strictly proved. See Kampala City Council v Nakaye [1972] E.A 446, Coast Bus Service limited v Sisco E. Murunga and others, Nairobi, Court of Appeal, Civil Appeal 192 of 1992 (unreported). The respondent had specifically pleaded for special damages of Kshs 151,850. The proved expenditure was Kshs 10,600 at Moi Teaching and Referral Hospital (exhibit 5); Kshs 15,000 for the coffin (exhibit 6); Kshs 16,250 for the funeral programme (exhibit 7); Kshs 30,000 for catering expenses (exhibit 8); and, Kshs 80,000 for transport (exhibit 9). The total is Kshs 151,850.

23. The upshot is that this appeal succeeds partly. The judgment and the decree of the lower court are set aside. There shall now be judgment in the following terms-

General damages for pain and suffering……......…..Kshs 10,000.

Loss of expectation of life……………………………..Kshs 100,000.

Loss of dependency……………………………....…...Kshs 2,104,000.

Special damages………………………………............Kshs 151,850.

Subtotal I……………………………………………......Kshs 2,365,850.

Less(discount) for loss of expectation of life…....…Kshs 100,000.

Subtotal II…………………………………………...….Kshs 2,265,850.

Less30% contributory negligence………....………Kshs 679,755.

Net Award……………………………………………….Kshs 1,586,095.

24. The upshot is that the appellant shall pay to the respondent Kshs 1,586,095. I also grant the respondent interest on the sum from 19th October 2012, the date of the original decree. Costs follow the event and are at the discretion of the court. I grant the respondent costs in the lower court. Each party shall bear its own costs in this appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 9th day of November 2017.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

No appearance by counsel for the appellant.

Ms. Mercy Ruto for the respondent instructed by R. Odede & Company Advocates.

Mr. J. Kemboi, Court Clerk.