[2023] KEHC 19406 (KLR)

County Government of Kitui & another v Mutinda & another (Sued as the Administrators of the Estate of Samson Kyalo) (Civil Appeal E058 of 2021) [2023] KEHC 19406 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19406 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E058 of 2021

RK Limo, J

June 27, 2023

Between

County Government of Kitui

1st Appellant

Godfrey Muatha Muthui

2nd Appellant

and

Faith Mawia Mutinda

1st Respondent

Benard Musyoka Koingo

2nd Respondent

Sued as the Administrators of the Estate of Samson Kyalo

(Being an Appeal that arose from the Judgement and Decree of the Senior Principal Magistrate’s Court of Kenya at Mwingi (Hon. Onkoba) delivered on the 28th day of July, 2021)

Judgment

1. This appeal is only on quantum and it arose from the Judgement of Hon. Onkoba –Senior Principal Magistrate delivered on 28th July, 2021 vide Mwingi Chief Magistrate’s Court Civil Suit No. 18 of 2020.

2. The above suit related to a fatal road traffic accident that occurred on 14th August, 2019 along Mwingi-Thika Road, involving appellant’s motor vehicle Registration No. KBW 217V and a motor cycle Registration No. KMDB 817 which was being ridden by the late Samson Kyalo (deceased). The Respondents being theadministrators of the estate pleaded that the deceased was 29 years old at the material time and enjoyed good health and was working for gain with a monthly salary of Kshs. 30,000 besides operating boda boda business.

3. The parties negotiated and agreed on the question of liability with the appellant shouldering 80% while the Respondent shouldered 20%. The trial court qualified damages payable as follows: -a)Special damages at Kshs 51,825/-b)Damages for pain and suffering at Kshs 30,000/-c)Damages for loss of expectation of life at Kshs 100,000/-d)Damages for loss of dependency at Kshs 4,000,000/-e)Less 20% contributionTotal= 3,345,460/-

4. The Appellant’s felt aggrieved with the judgement of the trial court and lodged this appeal raising the following grounds namely: -i.The Honourable Learned Trial Magistrate erred in law and in fact and misdirected himself by adopting an unjustified, inordinately high multiplicand unsupported by the pleadings and evidence.ii.The Honourable Learned Magistrate erred in law and fact in adopting the sum of Kshs 20,000/- as the multiplicand for income applicable to the deceased which was not supported by the evidence on record thereby giving an inordinately high award.iii.The Honourable Learned Trial Magistrate erred in law and in fact in adopting a multiplicand of 25 years to the deceased aged 29 years without considering vagaries of life and contrary to the evidence adduced by the Plaintiff, thereby giving an inordinately high award.iv.The Honourable Learned Trial Magistrate erred in law and in fact in adopting the dependency ratio at 2/3 instead of 1/3 contrary to the evidence adduced by the Plaintiff, thereby giving an inordinately high award against the appellant.v.The Honourable Learned Trial Magistrate erred in law by giving an inordinately high and manifestly excessive award as loss of dependency which award is unsupported by law so as to amount to an erroneous award in the circumstances of the case.vi.The Learned Trial Magistrate erred in law and fact by failing to deduct the award under the Fatal Accidents Act from that awarded under the Law Reform Act.vii.The Learned Trial Magistrate erred in law and fact in proceeding on the wrong principles vis-a-vis the evidence before him and laid down principles of law in awarding special damages.viii.The Honourable Learned Trial Magistrate further erred in law and fact by failing to appreciate, consider and take into account the Appellant’s submissions on the quantum of damages awardable in the circumstances.ix.The Honourable Learned Trial Magistrate erred by making a decision on quantum that was erroneous, without proper basis and against the weight of evidence.x.The Honourable Learned Trial Magistrate erred in law and fact in proceeding on the wrong principles vis-a-vis the evidence before him and laid down principles of law in awarding general and special damagesxi.The Learned Trial Magistrate erred in law and fact by taking into account irrelevant consideration/factors while awarding general and special damages.xii.The Honourable Learned Trial Magistrate erred by making a decision on quantum of damages that was erroneous, without proper basis and against the weight of evidence.

5. The appellants’ grievance in this appeal as noted above is only quantum. They contend that the award made was too high and excessive and have expressed issues on the multiplicand used by the trial court in the assessment of loss of dependency.

6. The Appellants submit that the court erred in using a multiplicand of Kshs 20,000/- while relying on the contract of employment dated 6th May 2019 without establishing whether it had been renewed after its expiry on 31st July 2019. In their view the deceased ought to have been taken as an unskilled worker entitled to a multiplicand of Kshs 7,240/- per month instead and cited the case of Philip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR where there was no prove provided on the monthly earnings the deceased. The court in that matter used the rate set at the time for unskilled workers which stood at Kshs 6,000/- because there was no prove of monthly income.

7. The appellant submits that a multiplicand of Kshs. 7,240. 95 which is set for general workers under Regulation of Wages (General Amendment) Order, 2018 could have been appropriate in the circumstances and propose that the multiplicand be adopted by this court.

8. On Dependency ratio, the appellants submit that there was no proof indicating that the deceased was the sole bread winner of his family and submit that the dependency ratio should therefore, be at 1/3.

9. On the multiplicand, the Appellants submit that whilst the deceased was 29 years old at the time of this death a consideration of the uncertainties of life ought to have been taken into account as such, their proposal for the multiplicand should be 16 years and not the 25 years adopted by the trial court. In the end, the Appellants in consideration of their proposal submit that damages for loss of dependency should be calculated as follows; 7,240. 95x12x16x1/3= Kshs 463,420. 80.

10. The Appellants further submit that the trial court erred in failing to deduct the award under the Fatal Accidents Act from the Award under the Law Reform Act. They have cited the case of Charles Omwenga Ongiri & another v Daniel Muniko [2017] eKLR where the court deducted the award on loss of expectation of life from the damages awarded under Law Reform Act. In that matter, the court held the opinion that that the two awards could only be maintained in cases where a court gives a global award but not in cases where the awards are made in respective and distinct heads.

11. The Respondents have opposed this appeal vide their written submissions through their Counsel dated 3rd February, 2023.

12. On the question of the multiplicand, the Respondents submit that the deceased was a trainer at the North Eastern National Polytechnic vide employment contract dated 6th May 2019 where he was earning a salary of Kshs 20,000/- per month. They have cited the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR where the Court of Appeal sitting in Nyeri, held that the net income determines the multiplicand and it is only net of statutory deductions.

13. On the Multiplier adopted by the trial court, the Respondents submit that the trial court fell into error by adopting a multiplier of 25 years. They submit that the deceased was a professional lecturer/ tutor who could have worked up to the age of 60 years as such, a multiplier of 31 years was more applicable. They have cited the case of Mary Wanjiru Mugwe v Peter Gatoto Ng’ang’a & Anor [2019] Eklr where the court upheld a multiplier of 20 years where the deceased was a business woman aged 40 years at the time of her death. The court held the opinion that she would have worked until the age of 60 years.

14. On the dependency ratio, the Respondents submit that where the deceased was married, the dependency ratio is ordinarily held to be 2/3. They have cited this court decision in Petronila Muli vs Richard Mwindi Savi & Catherine Mwende Mwindi (2021) eKLR where the court adopted the same reasoning that it would be expected that a married person would utilize 2/3 of their earnings on their family.

15. They contest the appellant’s contention that the trial court fell into error by failing to deduct Kshs. 100,000 for loss of expectation of life from the overall award of dependency. The Respondents contend that the amount is non-deductible and have relied on the decision in Hellen Waruguru (Suing as Legal representative of Peter Waweru Mwenja(deceased) v Kiarie Shoe Stores Limited (Supra) where the Court of Appeal observed that such deductions was not anchored in law.

16. This Court has considered this appeal and the response made. As noted above, this appeal is only on quantum and my role as the 1st appellate court is to re-evaluate the evidence and principles applied by the trial court in the assessment of damages with a view to making own determination over the same.

17. The appellants have taken issue with approach taken by the trial court when assessing quantum payable under loss of dependency and further taken issue with the fact that the trial court failed to deduct the damages payable under Law Reform from those awarded under Fatal Accidents Act.

18. The principles applicable on appeal against quantum of damages were restated in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where the Court of Appeal held;“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.’’

19. So what are the principles in assessment of damages in fatal accidents claims? Principles of reference in award of damages on loss of dependency are the multiplicand, multiplier and dependency ratio.

20. Loss of Dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Act which provides:‘‘Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.’’

21. Evidence before the trial court was that the deceased was 29 years old at the time of his death. The trial court considered that there was no record of ill health on his part and considering the uncertainties of life found that a multiplier of 25 years was reasonable. The Appellants are of the view that 16 years would be sufficient. They have however not provided a basis for the same. The Respondents have proposed 31 years on their part.Their arguments are that the deceased was lecturer/tutor and could have worked up to the age of 60 years.

22. The trial court relied on the case of Paul Ouma vs Rosemary Atieno Onyango & Peter Juma Awiti (suing as the legal representatives of the Estate of Joseph Onyango Awilo (deceased) (2019) eKLR where a multiplier of 20 years was used for a deceased who was 38 years old.

23. It has to be noted that retirement age for civil servants currently is begged at 60 years.

24. The appellants contend that the trial court erred by using a multiplicand of Kshs. 20,000 when the employment contract relied on, was expiring on 31st July, 2019 with no proof that the same would be renewed.

25. The trial court in its judgement reasoned that the contract of employment exhibited, indicated that the deceased was in formal employment. This is the finding of the trial court.‘‘With regards to earnings, it is clear that the deceased had signed a contract with the North Eastern National Polytechnic with a monthly wage of Kshs 20,000/-. It was to lapse on 31/7/2019. It is clearly indicated that it was renewal at the behest of both parties. The Defendants submit that the said contract had lapsed about two months early at the time of the occurrence of the accident. This is an apparent error. The date of the accident is 14/8/2019. That is a fortnight from the date of expiry of the contract.The parties were clearly signing the contract on 6th May 219, but the deceased had started working on 1st May 2019. This shows that the parties could delay the signing of the agreement to finalize the same. The Plaintiffs demonstrated that the deceased was drawing a given income.’’

26. The trial court went on to find that it would be unfair to classify the deceased as an unskilled general worker when the contract proved that he was a skilled professional who had been contracted to teach a National Polytechnic in the department of building and civil engineering. The trial court also considered that he had an additional income to his family.

27. This Court has re-evaluated the evidence tendered in respect to what the deceased was engaged in prior to his demise.

28. The exhibited contract indicates that it was a Temporary Service Contract between the deceased and North Eastern National Polytechnic. The said contract shows that it was to terminate on 31st July, 2019 but clause 4 thereof shows that the same could be renewed on a need bass and if the employer was sufficiently convinced that the employee was a performer. The deceased of course died fourteen days after the contract was set to expire which was on 31st July, 2019.

29. The question posed is whether the trial court fell into error when it held that it would be unjust to hold that the deceased was an unskilled worker as suggested by the Appellant. In my view, it was not proper to consider the deceased as unskilled worker when it is apparent from the evidence tendered that he possessed technical skills to be engaged as a tutor in a polytechnic. At the same time, it was also erroneous to assume that the contract would be extended since there was no evidence from North Eastern Polytechnic suggesting that the work or services rendered by the deceased deserved contract renewal as envisaged in the exhibited contract of employment.

30. The trial court fell into error by assuming that the deceased’s contract would be reviewed and would be renewed for the next 31 years. That in my view was too speculative and unsafe.So although it is a discretionary matter to choose the multiplicand to be used and an appellate court is usually reserved in interfering with the exercise of discretion by a trial court, the exercise of discretion should be sound, prudent and anchored in law/legal principle.

31. In Francis K. Righa v Mary Njeri (Suing as Legal Representative of the Estate of James Kariuki Nganga 2021 eKLR, restated the guidelines on the role of an Appellate Court on the question of reassessment of damages as follows;‘‘….that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived as is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision…’’

32. In cases where it is difficult to ascertain what the deceased earned prior to his/her demiseit is usually safe to resort to a global award or a lump sum considering all relevant factors like age, level of education/ skills, income of the deceased, kind of work he engaged in prior to his demise.

33. A similar finding was made by the court in the case of Board of Governors Kangubii Girls High School & Another v Jane Wanjala Muriithi & Another 2014 eKLR, where the court cited, the reasoning in the case of Cornelia Elaine Wamba v Shreeji Enterprises Ltd. & Others 2012 eKLR and stated,QUOTE{startQuote “}…...the choice of a multiplier or multiplicand is a matter of the Court’s discretion which discretion has to be exercised judiciously and with a reason. Some of the factors to be taken into consideration by a court in the exercise of its mandate on the choice of the two are the age of the deceased, nature of the profession he was engaaged in, possibility of retirement from employment where the profession engaged in provides for a retirement age and, lastly, possibility of death through natural causes and departure for greener pastures elsewhere.We have applied the above factors to the rival positions herein and find that the concurrent findings on the choice of multiplier, multiplicand and dependency ratio were well founded in law as they took into consideration the age of the deceased, nature of employment, earnings from the self-employed business of saw milling, probable length of time the deceased would have actively engaged in his business and pegged this at seventy years which we find reasonable. Lastly, the finding that the deceased had a family, a spouse with school going children was not disputed. He therefore, had dependants who were in law entitled to receive compensation for the loss of dependency……’’

34. In this appeal, both counsels have given different views on the choice of the multiplicand to be used with the appellant contending that the deceased should be considered unskilled hence the applicable option is the minimum wage of unskilled workers as provided by law. The Respondent has taken a different view that supports the direction taken by the trial court and assumes that the contract was to be reviewed. Both contentions are wrong in my view because there was no evidence showing the deceased earned at the time of his demise. In the circumstances obtaining, a global award of Kshs. 3 million for loss of dependency is appropriate given that the deceased was a young man with a potential of a great future. I am not persuaded that there was any evidence that he also engaged in side hustle in boda boda business. There was no basis for the trial court to make a finding that the deceased earned more income from his boda boda business.

35. Under the Law Reform Act, the trial court awarded Kshs.30, 000/- for pain and suffering and Ksh. 100,000/- for loss of expectation of life. The court then made an award of Kshs 4,000,000/- for loss of dependency under the Fatal Accidents Act. The Appellants argue that this resulted in double compensation.

36. This Court is persuaded by the appellant contention that the amount of Kshs. 100,000 awarded for loss of expectation of life should have been deducted particularly in view of the direction this court has taken its findings that a global award was appropriate in the circumstances.

37. The question of double compensation under the two Acts was explained by the Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR where it was held as follows;‘‘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 Act and dependents under the Fatal Accidents Act are 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 Act should 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.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 v Lubia & Another (No. 2) and the ratio decindendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that6. 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.”

38. When handling a similar situation as the present one, Odunga J in Kioko Peter v Beatrice Keli Mbuvi (suing as Legal Representative of the Estate of Amos Mutunga (Deceased) [2022] eKLR held as follows;‘‘What is required of the court is therefore not to deduct one award from the other but to take into account the possibility of double compensation. I have read the judgment of the learned trial magistrate and I agree that there was no indication that the court took into account the possibility of the double compensation. Taking cue from Eliphas Mutegi Njeri & Another vs. Stanley M’mwari M’atiri (supra) I find that the sum of awarded ought to have been discounted by Kshs 100,000/- t take into account the fact of the congruence of compensation and the fact of lump sum payment……..’’

39. In Sum, this appeal for the afore-stated reasons, is allowed. The Judgement of the Lower Court is set aside and the Respondent awarded damages as follows: -a. Special damages (not contested) Kshs. 51,825b. Pain and suffering (not contested) Kshs. 30,000c. Loss of expectation of life Kshs. 100,000d. Loss of dependency Kshs. 3,000,000e. Sub-total Kshs. 3,181,825Less 20% Contribution Kshs. 636,365Total Kshs. 2,545,460**

40. The Appellant will have half costs in this appeal while the Respondent will have costs of the above amount in the Lower Court and interests from the date of judgement in the Lower Court save that interests on special damages should be from date of filing suit in the Lower Court.

Dated, Signed and Delivered at Kitui this 27th day of June, 2023. HON. JUSTICE R. LIMO-JUDGE