[2021] KEHC 2336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CIVIL APPEAL NO. E021 OF 2021

CICILIA MORAA OBIERO

(Suing as the Personal Representative and

Legal Administrator of the estate of

HARRISON OBIERO MOGIRE (Deceased)............APPELLANT

VERSUS

DAVYNISIUS MATAGARO OMAE.......................1ST RESPONDENT

FELIX ATARO OTIENO.........................................2ND RESPONDENT

(Being an Appeal from the judgment and Order of Honourable W.C Waswa dated

8th March 2021 in Nyamira CMCC No. 60 of 2020)

JUDGEMENT

1. The Appellant filed this suit in her capacity as personal representative and Legal Administrator of the estate of Harrison Obiero Mogire (deceased) by a plant dated 16th June, 2020, seeking special and general damages for fatal injuries sustained by the deceased on 7th January 2020. The claim arose from a traffic accident which occurred on 7th January, 2020 when the deceased who is said to have been a pedestrian walking at a place called Kimera along Kisii- Nyamira road was hit by a motor vehicle Regn No KCR 539L belonging to the Respondents when the motor vehicle lost control and veered off the road. According to the Plaint, the deceased, then aged 57 years sustained injuries and died two hours after the accident. The deceased was allegedly survived by his wife (the Appellant) and three children namely; Nixon Onsongo Obiero, Nixon Maroko Obiero and Hezron Matara Obiero all adults. The defendant filed a Defence denying all the allegations of negligence.

2. Upon hearing the matter, the trial court found in favour of the Appellant. The court held the Respondents 100% liable for the accident and awarded damages to the Appellant as follows:-

Damages under the Law Reform Act

a)Loss of expectation of life Kshs. 100,000/00

b)Pain and suffering Kshs. 50,000/00

Damages under the Fatal Accidents Act

a) Loss of dependency Kshs. 294,248/40

b) Special damages Kshs. 101,365/00

Total Kshs. 545,613/00

The Appellant was also awarded the costs of the suit and interest.

3. The Appellant was aggrieved by the assessment of damages and filed an appeal by its Memorandum of Appeal dated 19th March, 2021 filed herein on 22nd March, 2021. The grounds of appeal are:-

a)THAT the learned Magistrate erred in law and in fact in awarding damages that are so low as to amount to an erroneous estimate of the damage suffered by the deceased’s estate.

b)THAT the learned trial Magistrate erred in law and in fact in not considering the Appellant’s submissions,

c)THAT the learned trial Magistrate erred in law and in fact in awarding the Plaintiff inordinately low award in respect of pain and suffering, loss of expectation of life and loss of dependency.

SUBMISSIONS BY THE PARTIES

4. Counsel for the Appellant begun by stating that this court has jurisdiction to hear and determine this appeal; That this court being the first appellate court is entitled to reconsider the evidence, evaluate it itself and draw its own conclusion while making due allowance for the fact that it has neither seen nor heard the witnesses. To support this assertion, Counsel for the appellant cited the decisions in Paul Kipsang Koech & another Vs Titus Osule Osore (2013) eKLR and Kiwanjani Hardware Limited & another Vs Nicholas Mule Mutinda (2008)eKLR

5. Counsel for the Appellant then stated that the award of damages herein is inordinately low and that the trial court failed to apply the correct principles and the relevant precedents while assessing the damages. Counsel did not however challenge the trial court’s finding on liability.

6. On the award for pain and suffering, Counsel submitted that the trial court erred in awarding Kshs 50,000/00; that the court relied on a precedent that was not relevant to the case. That the court relied on Acceller Global Logistics V Gladys Waswa and another (2020) eKLR, a case where the deceased died on the spot whereas in this case the deceased died while undergoing treatment. Counsel contended that the trial court should have considered the case of David Kuhuruka Gitau & another v Nancy Anne Wathithi & another (2016) eKLR where the court awarded Kshs. 100,000/00 as damages for pain and suffering where the deceased died 30 minutes after the accident.

7. On the award for loss of expectation of life, Counsel for the appellant submitted that the court erred in awarding Kshs. 100,000/00 noting that the deceased died at the age of 57 while employed as a revenue clerk at Nyamira County Government and was enjoying robust health and had a promising future. Counsel urged this court to enhance this amount based on the decision in the case of David Kahuruka (Supra).

8. On loss of dependency Counsel submitted that the trial court erroneously considered the deceased’s net pay of Kshs. 12,260/00 as a multiplicand. That in computing the multiplicand, the trial court ought to have only deducted statutory deductions for PAYE, NSSF and NHIF, a total of Kshs. 6,711/45, from the deceased’s total earnings. Counsel urged this court to set aside the multiplicand of Kshs. 12,260/35 per month and replace it with Kshs. 40,298/55 per month. On this Counsel relied on the decision of the Court of Appeal in the case of Mary Osano (Personal Representative of the estate Charles Otwori Ogechi - Deceased) V Simon Kimutai [2020] eKLR.Counsel however concurred with the trial court’s finding on the dependency ratio of 2/3 and multiplier of 3 years and submitted that this court should maintain the same.

9. In regard to the special damages of Kshs. 101,365/00 Counsel submitted that the same should be upheld as they were specifically pleaded and strictly proved.

10. On his part Counsel for the respondent submitted that the damages assessed are wholly sufficient. On the award for pain and suffering Counsel relied on the case of Recto East Africa Limited V Josephine Kwamboka Nyachaki & another 2021 eKLRwhere it was held that the awards are usually nominal but each case must be determined on its own merits.

11. On the award for loss of expectation of life learned Counsel for the respondent relied on the case ofMercy Muriuki & another V Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLRwhere it was observed that the Conventional award for loss of expectation of life is Kshs. 100,000/00. Counsel urged this court not to disturb the awards under the two heads.

12. In regard to the award for loss of dependency Counsel submitted that the trial court was correct in adopting the deceased’s net salary to assess the damages. In support of this submission Counsel relied on two cases both cited with approval in the case of Evaline Chepkurui (Suing as the Legal Representatives of the Estate of the Late Kiprotich Cheruiyot) V Stella Asuga & another [2021] eKLR.The two cases are:-

· Albert Muange Mwanthi & another (Suing as an Administrator of the Estate of Faith Ndete Muange – Deceased) V Dominic Muthama Muange & Another [2020] eKLR

· Sterling Civil Engineering (U) Ltd V Margaret Kirumira & others SCCA N0. 2 of 1991.

He urged this court to uphold the multiplicand adopted by the trial court and the award arrived at.

13. Counsel further submitted that in this case there was a double award in that the award under the law Reform Act was not taken into account in the Fatal Accidents Act and that this court ought to deduct the same. In this regard Counsel relied on the Court of Appeal decision in the case of Hellen Waruguru Waweru(Suing as the Legal representative of Peter Waweru Mwenja (Deceased) V Kiarie Shoe stores Limited [2015] eKLR as cited in Serem Korir & another V S S (Suing as the Legal representative of the estate of Ms. Deceased) [2019] eKLR.

ISSUES FOR DETERMINATION

14. The three grounds of appeal and the submissions of Counsel for the appellant reveal that the appeal is against the quantum of damages only. In regard to the award under the head of loss of dependency, the Appellant’s contention is only against the multiplicand of Kshs. 12,260/35 adopted by the trial court. The multiplier and ratio of dependency are not contested.

15. The issues that arise for determination are therefore:

a) Whether the learned Magistrate erred in applying a multiplicand of Kshs. 12,260/35; and

b) Whether the award for pain and suffering and for loss of expectation of life are inordinately low.

DETERMINATION

16. It is trite that the assessment of damages is discretionary and that provided the discretion is exercised judiciously and upon defined legal principles this court cannot interfere. The aforestated principle was enunciated in the case of Kanga v Manyoka [1961] EA 705, and subsequently adopted by the Court of Appeal in the case of Lukenya Ranching and Farming Coop Society v Kavoloto [1970] EA among other cases. In the case of Paul Kipsang & Another Vs Titus Osule Osore [2013] eKLR it was held that the appellate court will interfere with the exercise of discretion by the trial court in instances where that court either took into account an irrelevant factor, or left out a relevant factor, or if the award is so inordinately high or low that it must be a wholly erroneous estimate of the damages.

Issue 1: Whether the learned Magistrate erred in applying a multiplicand of Kshs. 12,260. 35/=

17. In the assessment of damages for loss of dependency, the trial court applied a multiplicand of Kshs. 12,260/35, which was based on the deceased’s payslip for the month of January 2020. The trial court stated that:

“PW1 produced the deceased’s payslip for the month of January 2020 as exhibit No.7. It shows that the deceased used to take home a net income of Kshs. 12,260/35. This court therefore adopts the sum of Kshs. 12,260/35 as the multiplicand. See Charity Mapenzi & anther v National Water Conservation & Pipeline Corporation (2005) eKLR.

Therefore, the award under loss of dependency is:

Kshs. 12,260. 35×12 months×3 years×2/3 = Kshs. 294,248/40”

18. A perusal of the deceased’s payslip for the month of January 2020 reveals that the deceased’s basic salary was Kshs. 32,010/00 per month, with a house allowance of Kshs.13,000/00 and commuter allowance of Kshs. 2,000/00 per month which totals to Kshs 47,010/00. The statutory deductions as contained in the payslip are; P.A.Y.E. at Kshs 5,411/45; NHIF Kshs 1,100/00 and NSSF Kshs. 200 which comes to a total of Kshs 6,711/45. The other deductions are Provident Fund LAP Fund Kshs. 5201/20, Cooperative Bank of Kenya Loan and the Social Welfare Association Contribution for Kenya County Government Workers. It is my finding that save for the Provident Fund the other contribution do not amount to compulsory statutory deductions as the learned magistrate erroneously held. In my considered opinion, the latter deductions were either in the form of savings or loan repayments none of which are to be factored in when determining a multiplicand. See the decision of the Court of Appeal in Mary Osano Vs Simon Kimutai (Supra)where the Court of Appeal stated:-

“This Court is therefore tasked to consider whether the learned Judge erred by using the figure of Kshs. 40,000/00 as the multiplicand instead of the Kshs. 70,000/00. We appreciate that the principle behind this finding is that courts must factor in statutory deductibles prior to arriving at the appropriate figure to use as a multiplicand. The same was held by this Court in ROSEMARY MWASYA Vs STEVE TITO MWASYA & ANOTHER[2018] eKLR”

“The figure chosen of Kshs. 118,546/00 took into consideration yearly increments had the deceased successfully followed her career. The only error we note the trial Judge committed in arriving at the final figure was the failure to factor in the element of taxation and other compulsory statutory deductions which in our view would have amounted to one third of the figure chosen as the multiplicand which would work out as Kshs. 118,546/00 x1/3=39,512/00. ”

Counsel for the appellant submitted that the deceased’s net pay as evidenced by a copy of his payslip was Kshs. 53,550/00 per month, with house allowance of Kshs. 45,000/00per month which totals to Kshs. 98,550/00. The statutory deduction as contained in the payslip are; P.A.Y.E AT Kshs 23,947/00; NHIF AT Kshs 320/00 and NSSF at Kshs 3,748/00 which totals to Kshs 28,015/00. The rest do not amount to statutory deductions as the learned Judge erroneously held. In our assessment, the rest of the deductions were either in the form of savings or payment of loans, none of which are to be factored in when determining a multiplicand.

A deduction of the total statutory deductions of Kshs 11,912/65 from the deceased’s salary of Kshs 47,010/00 leaves Kshs. 35,097/35 which in my opinion is the correct multiplicand. Accordingly, while applying a multiplicand of 35,097/35, the assessment of damages for loss of dependency ought to be as follows;

Kshs. 35,097/35 x 12 x 3 x 2/3 = Kshs. 842,336/40.

19. Accordingly the award by the trial court under the head of loss of dependency of Kshs. 294,248/40 for loss of dependency is hereby set aside and is substituted with an award for Kshs. 842,336/40. There was no cross-appeal in regard to this award and hence I shall not dwell on the issue of deduction raised by learned Counsel for the respondent.

Issue 2: Whether the award of damages for pain and suffering is inordinately low.

20. The Appellant urged this court to enhance the award for damages under this head from Kshs. 50,000/00 on the basis that the trial court relied on precedents that were not relevant to the suit and therefore arrived at an award that was inordinately low. In arriving at this award the trial court relied on the decision in the case of Mercy Muriuki & another Vs Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR where it was held:-

“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 100,000/00 while for pain and suffering the awards range from Kshs 10,000/00 to Kshs 100,000/00 with higher damages being awarded if the pain and suffering was prolonged before death.”

The trial court also relied on the case of Akeler Global Logistics Vs Gladys Nasambu Waswa & another [2020] eKLRwhere a deceased who died on the spot was awarded Kshs. 50,000/00. It is my finding that the trial court applied its mind to the established legal principles and that the award is reasonable and there is no justification to disturb it.

21. On loss of expectation of life, the trial magistrate awarded a conventional sum which I shall not disturb.

22. In conclusion, it is my finding that the appeal succeeds only in regard to the damages for loss of dependency which have been enhanced to Kshs. 842,336/40 from Kshs. 294,248/40. The award for damages under the Law Reform Act remain undisturbed at:-

a) Loss of expectation of life Kshs. 100,000/00

b) Pain and suffering Kshs. 50,000/00

23. Costs follow the event but as the appellant has succeeded only partially it is ordered that he shall get only half the costs of the appeal. It is so ordered.

SIGNED, DATED AND DELIVERED ELECTRONICALLY THIS 28TH DAY OF OCTOBER, 2021.

E.N. MAINA

JUDGE