[2017] KEHC 1260 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 83B OF 2015

DELINA GENERAL ENTERPRISES LIMITED ………...............................................................APPELLANT

VERSUS

M K N (Suing as Legal Representative of the Estateof E M P (DECEASED)..............RESPONDENT

(An appeal arising out of thejudgment of Hon.I.M.KahuyaSRMdeliveredon16th March, 2015in Machakos Chief Magistrate’s Court

Civil Case No. 841 of 2012)

JUDGMENT

Introduction

The Respondent herein, by a Plaint dated 10th October 2012 and filed in the trial Court on 12th October 2012, sued the Appellant seeking recovery of damages arising from an accident alleged to have occurred on 18th December 2011. The Respondent’s case was that on the said date of the accident, E M P (since deceased) was lawfully travelling as a fare-paying passenger aboard motor vehicle registration number KBA 966G along Mombasa road, when at Kiboko area, motor vehicle registration number KBC 029G was carelessly recklessly and negligently driven and controlled by the Appellant’s authorized agent, servant and/or driver that it veered off its lane and collided with motor vehicle registration number KBA 966G, thereby occasioning the deceased fatal injuries. The Respondent was the Plaintiff in the trial Court, while the Appellant was the Defendant therein.

The Appellant thereupon filed a Defence in the trial Court dated 13th May 2013, denying the allegations in the Plaint. The suit proceeded to full hearing, and on 16th March 2015, a judgment was entered in favour of the Respondent, in which the trial court awarded her damages of Kshs 643,600/= after taking into account 20% contributory negligence that was agreed upon by consent between both parties, plus costs and interest of the suit.

The Appellant subsequently moved this Court through a Memorandum of Appeal dated 11th May 2015, wherein it raised the following grounds:

a) That the Learned Magistrate erred in law and fact by making an award on general damages which was manifestly excessive and inordinately high considering the circumstances.

b) That the Learned Magistrate erred in law and in fact by failing to take in account the Appellant’s submissions while considering her judgment.

c) That the Learned Magistrate erred in law and in fact in failing to apply proper legal principles regarding the quantum and thus arriving at an erroneous decision.

d) That the Learned Magistrate erred in law and in fact by considering extrinsic matters thereby failing to judiciously exercise her discretion.

e) That the Learned Magistrate erred in law and fact in awarding costs to the Plaintiff when demand and notice had been denied and not proved in evidence.

The Appellant is praying for orders that the appeal be allowed, the lower Court’s judgment on liability be reassessed, and that costs of the appeal be awarded to the Appellants.

It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts, and come up with its findings and conclusions. See in this regard the decisions in this respect Jabane vs. Olenja [1986] KLR 661, Selle vs Associated Motor Boat Company Limited[1968] EA 123 and Peters vs. Sunday Post[1958] E.A. 424. The duty of this Court is therefore to examine and re-evaluate the evidence in, and findings of the trial Court, and to reach its own independent conclusion as to whether or not the findings of the trial Court as to liability and quantum of damages should stand.

I will therefore firstly proceed with a summary of the facts and evidence given in the trial Court. M K (PW1) the Respondent, testified that the Deceased was her daughter and she died on December 2001 after being involved in a road accident along Makindu . Further, that the deceased was a Form 1 student according to the letter from [particulars withheld] Secondary School she produced as Exhibit 1.

PW1 testified that she proceeded to obtain a police abstract which was produced as Exhibit 2. She also obtained letters of administration which she produced as Exhibit 4. PW1 stated that her daughter died on the spot and she produced the death certificate as Exhibit 5. Further, that they had incurred expenses and she produced receipts (Exhibit 3), and that her advocate carried out a search of the Motor vehicle at a fee of Kshs 500/= and produced the receipt as Exhibit 6b. She produced a copy of the search as Exhibit 6(a).

In conclusion, PW1 stated that her daughter used to help her in chores and would have helped her financially in the future. She sought compensation for her loss. In cross examination she agreed to the fact that she did not produce the deceased’s report forms.

The Appellant on its part closed its case without calling any witness.

The Issues and Determination

The Appellant and Respondent canvassed the present appeal by way of written submissions. Archer & Wilcock Advocates for the Appellants filed submissions dated 19th June 2017, while the Respondent’s Advocates, Annie W. Thoronjo & Co Advocates filed submissions dated 31st July 2017.

From the grounds of, and relief sought in this appeal, and the submissions made thereon by the parties, it is evident that the Appellant is only contesting the findings of the trial Court on quantum of damages, as the issue of liability was settled by the parties by consent in the trial Court. The issue before this Court for determination is whether the trial magistrate applied the correct principles of law in assessing the damages payable to the estate of the deceased.

The Appellant in this regard urged that in fatal accidents claims, claimants sue under the Law Reform Act and Fatal Accidents Act. Reliance was placed on the holding in E.A Growers Limited-vs.- Charles Nganga Ngugi ,(2015) eKLRthat damages under the heads of loss of earnings, pain and suffering and loss of expectation of life are usually grouped under the Law Reform Act. Further that the only head of damage under the Fatal Accidents Act is the loss of dependency though its assessment will invariably involve reference to the loss of earnings for the years the deceased would have worked (lost years).

However, that the trial magistrate failed to apply the said legal principles and never gave awards under the two heads, and instead gave a global award of 750,000/=, and relied on the case of Oshivji Kuvenji & Another- vs- James Mohamed Ongenge (2012) eKLRwhere a global sum of Kshs 320,000/= had been awarded to the deceased aged 6years .

In addition that the amount awarded was inordinately high and manifestly excessive and ought to be re-assessed. The Appellant proposed an award of Kshs 5,000/= for pain and suffering, and Kshs 70,000/- for loss of expectation of life. For lost years, a global sum of Kshs 400,000/= was proposed, or in the alternative a minimum wage of Kshs 3,000/= as the multiplicand and a multiplier of 15 years with a dependency ratio of 1/3, which would amount to Ksh 180,000/=. Various authorities were cited by the Appellant in this regard including the decisions in Lucy M. Njeri vs Fredrick Mbuthia & Another (2006) e KLRand P.I vs. Zena Roses Ltd & Another(2015) eKLR.

The Respondent on her part submitted that the award of Kshs 750,000/= as general damages was reasonable, in light of the pain and suffering the deceased suffered and the loss experienced by her dependants. Her proposals on the damages to be awarded under specific heads was that Kshs 100,000/= be awarded for loss of expectation of life, and Kshs 20,000/= for pain and suffering as the deceased died on the same day.

For loss of dependency, the Respondent proposed a minimum wage of Kshs 6,000/- and that the deceased would have worked for a minimum of 40 years as the multiplier, with a dependency ration of 1/3, which would therefore be Kshs 960,000/=. The Respondent relied on the following authorities: Commercial Transporters –vs- Nzula Kiasyo, Mombasa CA Civil Appeal 233of 2005; Stanley Kaunga Nkarichia vs Meru teachers College & Anor(2016) e KLR, andBeryl Bertha Malowa Were vs. Kenya Ports Authority, (2010) e KLR.

It is an established principle of law that that an appellate court will only interfere with quantum of damages where the trial court either took into account an irrelevant factor or left out a relevant factor, or where the award was too high or too low as to amount to an erroneous estimate, or where the assessment is not based on any evidence (see Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727, Peter M. Kariuki v Attorney General CA Civil Appeal No. 79 of 2012 [2014]eKLRandBashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

In the present appeal, the trial magistrate awarded general damages of Kshs 750,000/=, and special damages of Kshs 54,500/= less 20% on account of contributory negligence. It is notable that damages for pain and suffering are recoverable as a separate head of damages in fatal accidents under the Law Reform Act, if a deceased person suffered pain and suffering as a result of his injuries in the period before his death. In addition a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. To the extent that there were no such damages awarded by the trial Court, there was an error made in this regard.

The generally accepted principle 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/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 testified that the deceased died at the scene of the accident, and I find that an award of Kshs 10,000/= for pain and suffering and Kshs 100,000/= for loss of expectation of life would be reasonable in the circumstances.

On the award of damages for loss of dependency under the Fatal Accidents Act, it is necessary to determine the deceased’s income, the dependency ratio of his dependants and the multiplier to be used. The manner of assessment of damages for loss of dependency was aptly explained by Ringera J. (as he then was)inBeatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No. 1638 of 1988 as follows;

1. The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

The evidence by the Respondent was that the deceased was a minor and was still in school. The trial magistrate thus correctly found that the deceased income could not be ascertained since she was not in formal employment, and awarded a global sum of Kshs 750,000/=, while basing her decision on Oshivji Kuvenji & Another- vs- James Mohamed Ongenge (2012) eKLRwhere a global sum of Kshs 320,000/= had been awarded as damages for loss of dependency to the deceased aged 6years , and after the trial Magistrate took into account inflationary trends. I note in this respect that there was no error made in making a global award, as it is not every case that will use a multiplicand and multiplier in the assessment of damages for loss of dependency, as held by Ringera J (as he then was) in the case of Kwanzia vs Ngalali Mutua & Anotherthat:-

“The Multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation, where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

In addition, the decision in Oshivji Kuvenji & Another- vs- James Mohamed Ongenge (2012)eKLR which was relied on by the Appellant, was with respect to a suit first filed in 2007, and the global sum awarded therein of Kshs 320,000/- was for loss of dependency with respect to a 6 year old child; whereas the accident herein took place in 2011 and the deceased herein was 17 years of age. Furthermore, the damages of loss of dependency awarded in the said case were in addition to awards made for pain and suffering and loss of expectation of life. The global sum of 750,000/= awarded by the trial magistrate is thus reasonable sum for loss of dependency after taking into account inflation.

Lastly, in the award of special damages, the Respondents produced receipts for and was awarded KShs. 54,500/= which was pleaded and proved in line with the applicable principle that for special damages to be awarded, they must be specifically pleaded and also strictly proved as held in Maritim & Another –v- Anjere (1990-1994) EA 312.

I therefore dismiss the Appellant’s appeal for the foregoing reasons with costs to the Respondent, and also set aside the said award of damages in the trial court of Kshs 643,600/=, and substitute it with a total award of Kshs 731,600/= to the Respondent as against the Appellant, which has been computed as follows arising from the findings in the foregoing:

Kshs

(a) Pain and suffering 10,000. 00

(b) Loss of expectation of life 100,000. 00

(c) Loss of Dependancy 750,000. 00

(d) Special Damages 54,500. 00

Sub -Total 914,500. 00

Less 20% Contributory negligence 182 900. 00

Total 731,600. 00

The Respondent shall have 80% of the costs of the trial and appeal.

It is so ordered.

DATED AT MACHAKOS THIS 9TH DAY OF OCTOBER 2017.

P. NYAMWEYA

JUDGE