[2018] KEHC 6355 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 109 OF 2017

CORAM: D.S. MAJANJA J.

BETWEEN

DAVID MWENDA.........................................................1ST APPELLANT

JAPHET KOOME........................................................2ND APPELLANT

AND

ALICE KAWIRA suing the administrator of the estate of

JOHN MUNYOKI MALYUNGA (DECEASED)........RESPONDENTS

(Being an appeal from the Judgment and Decree of Hon.A.G.Munene, SRMdated 15th November 2017at the Chief Magistrates Court at Maua in Civil Case No. 131 of 2015)

JUDGMENT

1. The is an appeal against the trial court’s finding on liability and quantum following an accident that took place on 19th December 2012 while the deceased was riding his motorcycle along Athiru-Gaiti road near Maua Methodist church when the 1st appellant vehicle registration number KAK 267H Dyna was driven negligently that it knocked down the deceased causing him fatal injuries. The deceased personal representative claimed damages under the Law Reform Act (Chapter 26 of the Laws of Kenya)andFatal Accidents Act (Chapter 32 of the Laws of Kenya). The trial court found the appellant fully liable and made the following award that has now precipitated this appeal;

Pain and Suffering Kshs. 50,000/-

Lost years Kshs. 100,000/-

Loss of consortium Kshs. 200,000/-

Loss of dependency Kshs. 3,640,000/-

Special damages Kshs. 140,000/-

Less 30% contribution

Total Kshs. 1,759,597/-

2. The grounds of appeal are set out in the petition of appeal. I will deal with the issue of liability first and in doing so, it is worth reciting the principle that governs the exercise of this court’s jurisdiction. It is that this court's role as the first appellate court is to re-evaluate and re-assess the evidence adduced before the trial court keeping in mind that the trial court saw and heard the parties and giving allowance for that reach an independent conclusion as to whether to uphold the judgment (see Selle v Associated Motor Boat Co. [1968] EA 123).

3. The appellant in the complains that the trial magistrate erred in law and in fact in finding that the appellants were 100% liable having regard to the evidence on records and the circumstances of the accident. On this issue, the only evidence was that of Douglas Gitonga (PW 2) who was the deceased’s pillion passenger on the material day. He testified that the 1st appellant’s motor vehicle lost control and veered on to the deceased’s lane hit him. In cross-examination, he told the court that he was able to see infront and that the 1st appellant’s vehicle was coming towards him at a high speed, left its lane and the hit the deceased. He insisted that the deceased did not leave its lane. The appellants did not call any witnesses and since this was the uncontroverted evidence of the respondent, I find no reason to depart from the trial court’s finding that the appellant’s were fully.

4. I now turn to the issue of quantum. Before I consider the said grounds and contesting arguments, I must keep in mind the general principal upon which this Court, as an appellate court, will interfere with an award of damages. It was stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows;

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. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low ….

5. The thrust of the appellants’ appeal was that the award of loss of dependency under the Fatal Accidents Act was inordinately high and was not supported by any evidence particularly of documentary evidence of the deceased’s earnings. The appellants also contended that the trial court did not consider their submissions. To support the claim, the deceased’s wife. Alice Kawira (PW 1) testified that they had a 6-year-old son and that he was operate a boda boda from which he earned Kshs. 1000/- to support the family. The death certificate produced in court showed that the deceased was 28 years at the time of his death.

6. At this stage I would point out that there seems to be an error in the award of lost years. From the tenor of the judgment, the trial magistrate must have been referring to loss of expectation of life awarded under the Law Reform Act which award is usually a conventional figure. I also do not think the issue of consortium arises as the respondent’s spouse is dead and there is no expectation of consortium from the deceased.

7. I now turn to the claim under the Fatal Accidents Act. As regards the earnings, the trial magistrate was correct to note that it was not necessary that the claimant produce documents. This finding is consistent with the decision of the Court of Appeal in Jacob Ayiga Maruja & Another v Simeone Obayo KSM CA Civil Appeal No. 167 of 2002 [2005]eKLR where it was observed that, “We do not subscribe to the view that the only way of proving earnings is equally the production of documents.”The claimants need only prove the case on a balance of probabilities. PW 1 testified on oath that the deceased was in boda boda business and he in fact died while carrying a pillion passenger. The issue is what is the multiplicand to adopt. PW 1 stated that the deceased was earning about Kshs. 1,000/- per day while the trial magistrate relied on, “gazetted wages which is about Kshs. 15,000/- per month.” It is not clear what gazette the trial magistrate was referencing. While the sum of Kshs. 1,000/- per day would be reasonable, I take into account the fact that there would be good days and bad days and I find a sum of Kshs. 500/- on average more reasonable and if he was working for 6 days a week, his monthly income would be Kshs. 10,000/-.

8. As regards the multiplier, the deceased was aged 28 years. The trial magistrate awarded 32 years based on the fact that he would work until he was 60 years old. The Court of Appeal in Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku Muriithi & Another NYR CA Civil Appeal No. 35 of 2014 [2014] eKLR held that the choice of multiplier is a matter of the courts discretion which must be exercised judiciously. In Roger Dainty v Mwinyi Omar Haji & Another MSA CA Civil Appeal No. 59 of 2004 [2004]eKLR the Court also held that the determination of the multiplier is a question of fact to be determined from the peculiar circumstances of the case. In determining the multiplier to be adopted, the court may consider the nature of employment of the deceased and the fixed retirement age, the period of expected dependency, the conditions of life of the deceased could have lived, keeping in mind that the standard of life and the life expectancy in Kenya has reduced over the years due to factors such as poverty, impact of HIV and the risk of road traffic accidents. The trial magistrate erred by failing to discount the multiplier by failing to take into the factors I have enumerated. Accordingly, I reduce the multiplier and award 22 years.

9. Determination of the applicable dependency ratio is a question of fact (see Boru v Onduu [1982 -1992]2 KAR 288). The respondent did not plead that the deceased had a child at paragraph 4 of the plaint. A plaintiff is required to plead or deliver full particulars of the persons for whom the damages are claimed under section 8 of the Fatal Accidents Act. The evidence of the child cannot supercede the failure to plead the particulars of the dependants hence the dependency ratio must be reduced. I would find that a dependency ratio of ½ would be appropriate in the circumstances.

10. For the reasons I have stated, I allow the appeal and set aside the awarded for loss of dependency under the Fatal Accidents Act and substitute it with an award of Kshs. 1,320,000. 00 being (Kshs. 10,000 X 12 X 22 X ½ ). The total award shall be as follows:

Pain and Suffering Kshs. 50,000/-

Loss of expectation of life Kshs. 100,000/-

Loss of dependency Kshs. 1,320,000/-

Special damages Kshs. 140,000/-

TOTAL Kshs. 1,610,000/-

The amount shall accrue interest from the date of judgment in the subordinate court. The appellant shall have the costs of the appeal which I assess at Kshs. 100,000/-.

DATEDandDELIVEREDatMERUthis30th day of May 2018.

D.S. MAJANJA

JUDGE

Mr Mutegi instructed by Kiauthia Arithi & Company Advocates for the appellant.

Mr Mutembei instructed by Mutembei & Kimathi Advocates for the respondent.