[2018] KEHC 6557 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL APPEAL NO. 18 OF 2017

(Being an appeal arising from judgment in Kitale Chief Magistrate's Court in MCC No. 339 of 2015 delivered by P.C. Biwott Senior Principal Magistrate on 29/5/2017)

1. CHERENGANY HILLS LIMITED................................1ST APPELLANT

2. RODGERS NDAGA........................................................2ND APPELLANT

VERSUS

B W M........................................................................................RESPONDENT

J U D G M E N T

1. This is an appeal by the appellants from the judgment of the lower court which awarded the respondent the net sum of Kshs 2,213,081 pursuant to a road traffic accident that occurred on 12/12/2014 along Kitale - Eldoret road wherein one B K W lost his life. The parties at the lower court settled the question of liability and all that remained was the determination of quantum of damages.

2. The court arrived at the aforestated figures as follows:-

1) Pain and suffering - Kshs 60,000.

2) Loss of expectation of life - Kshs 200,000.

3) Loss of dependancy (future) - Kshs 2,160,000.

4) Special damages - Kshs 183,625.

5) Total - Kshs 2,603,625

6) Less 15% contribution - Kshs 390,000

7) Net - Kshs 2,,213,081/=

3. The appellant was dissatisfied with the above and has filed this appeal arguing that the court arrived at the same based on the wrong principles of law, that there was no evidence of dependancy and that the multplicant applied was erroneous inter alia.

4. I have perused the proceedings from the lower court and it appears that there was no dispute that the deceased was aged 18 years and a student in form II. He died shortly after the accident.

5. The trial court found that he would have retired at age 60 and it proceeded to apply a multiplier of 30 years as well as a minimum wage of kshs 9,000/-.

6. From the reading of the submissions by the appellants the actual bond of contention is the award of these lost years. They have argued that being a student, there was no evidence to suggest that he even supported his parents and that the court's arrival of such a multiplier was purely speculative.

7. The appellant argued that there was no evidence that the deceased parents depended on the deceased except that he used to help during school holidays and this does not qualify to be termed dependancy.

8. On the other hand the respondent argued that the trial court arrived at a fair conclusion by finding that indeed the educational status of the deceased was taken into consideration and and that the deceased was expected to assist his parents after completing school. They expected him to have graduated into a teacher or a mechanic and joint the labour market.

9. Its trite law now that the appellate court shall only interfere with the trial court's findings if

“--------- in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

10. See Kemfro Africa Limited t/a Meru Express Services, Gathogi Kanini Vs A.M. Lubia and Olive Lubia (1982-88) KAR 727.

11. The two parties have referred me to various authorities which I have had the benefit of perusing. In arguing the above ground the appellant relied on the authority of T.O.A Vs George Onyango Ogan& Another (2009) eKLR where the court found that a deceased dependant and who was school going would only be awarded damages under the Law Reform Act and that multiplier approach would not suffice. That authority in my view is persuasive to this court.

12. The Court of Appeal in Kenya Breweries Ltd Vs Saro (1991) eKLR rendered itself as follows after discussing whether damages ought to be paid or not for a 4 year old who died as a result of road traffic accident.

“----- This is because in the Kenyan society, at least as regards African and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya, that even young children do help in the family, say by looking after cattle or caring for younger followers and once the children become adults they are expected to and do in variably take care of their aged parents ---”

13. The learned judges continued to state that

“In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution -------- we are satisfied that the learned judge was right in awarding damages to the respondent following the death of his son and we reject ground of appeal that the learned judge erred in holding that the respondent was entitled to claim damages under the Fatal Accidents Act. The respondent was entitled to do so under Section 3 and 4(1) of that Act and under the authorities to which we have referred.”

14. In view of the above findings and specifically the provisions of Section 3 and 4(1) of the Fatal Accident Act I find that the trial court was right in awarding damages under the said Act. The only question should be whether the damages was too excessive or too low in the circumstances. Did the trial court apply wrong principles in reaching its conclusion?

15. The age of the deceased and his situation in life at the time of his death was not disputed. The court based its findings on a retirement age of 60 years and a minimum salary of 9,000/=. I do not find the said approach to be unreasonable at all. This court on this ground does not find that the same was excessive or too low.

16. The other headings namely pain and suffering, loss of expectation of life as well as special damages were within what I term reasonable range.

17. I do therefore find this appeal unmeritorious. The same is hereby dismissed with costs to the respondent.

Delivered, signed and dated at Kitale this 30th day of May 2018.

________________

H.K. CHEMITEI

JUDGE

30/5/18

In the presence of;

Mfutu holding brief for Onyancha for Respondent

Athung'a for Onyinkwa for Appellant

Judgment read in open court.