[2023] KEHC 19261 (KLR)

EKC (Suing as the Legal Representative of the Estate of the Late FA) v Ng’anga (Civil Appeal E024 of 2022) [2023] KEHC 19261 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19261 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E024 of 2022

FROO Olel, J

June 27, 2023

Between

EKC (Suing as the Legal Representative of the Estate of the Late FA)

Appellant

and

William Thuku Ng’anga

Respondent

(Being An Appeal From The Judgment And Decree of Hon. E. Kelly (S.R.M.) Delivered on 15Th February 2022 In Naivasha Civil Case No 325 of 2017)

Judgment

1. The Appellant was the Plaintiff in the primary suit. Vide a plaint filed, she claimed damages arising from a road traffic accident which occurred on 07. 01. 2017. The deceased was lawfully travelling in motor vehicle registration number KBZ 262 X { herein after referred to as the suit motor vehicle }, along Nairobi –Naivasha road at Nyamathi area when the Defendant by himself, servant agent or employee negligently, carelessly and/or recklessly drove, managed and or controlled the said suit motor vehicle causing it be involved in an accident and as a result FA, who was a fair paying passenger therein sustained fatal injuries. The appellant herein, who was the deceased mother, prayed for damages under Fatal Accident Act, the Law Reform Act, Special damages, costs and interest.

2. The Defendant, who is the respondent herein, filed his statement of defense on 13. 09. 2017 denying all the contents of the Plaint and averred that if the accident, occurred which was denied, it was caused and/or substantially attributed to by the negligence of the deceased.

3. After hearing the suit, the learned magistrate in the judgment delivered on 15th February 2022 where liability was apportioned at 15:85 in favour of the Plaintiff which had been agreed upon by consent of the parties and gave the following award;a.Loss of expectation of life Kshs 100,000b.Pain and Suffering Kshs 20,000c.Special Damages Kshs 35,550d.Loss of dependency Kshs 600,000Total Kshs 655,550Total Kshs 755,550 less Kshs 100,000/= 655,550Less 15% liability based on consent entered on liability by the parties Kshs 655,550/=e.Costsf.Interest thereon.

4. Dissatisfied by this decision, the Appellant filed this Appeal seeking to have the judgment on quantum set aside and or reviewed and the same be enhanced by adding the award on loss of expectation of life and costs of the Appeal.

5. The Appeal was founded on the grounds that;i.The learned Trial Magistrate erred and misdirected himself in law and in fact in his assessment of damages awardable under the limb of loss of dependency and loss of expectation of life.ii.The learned Trial Magistrate failed to appreciate and/ or misapplied the principle applicable in the assessment of damages under the circumstances deducting the amounts awarded under the limb of loss of earning from loss of dependency.

Facts of the Case 6. The Plaintiff called one witness, EKC who testified that she worked as a house girl. On 7. 1.2017, FA, her child as involved in road traffic accident and sustained fatal injuries. She was aged 13 years was in class 6. She produced her claim supporting documents as Exhibit 1-8. She further stated that her daughter had no health issues prior to the accident, she was intelligent and performed well in school and wanted to be a doctor when she grew up. She had legitimate expectations that her child would assist her when she grew up. She spent Kshs 65,000 on funeral and burial. Upon cross examination, PW1 stated that the deceased was a pupil in class 6 in Mumias. She did not have her birth certificate to confirm that she was her child. She also had no receipts to prove that she spent Kshs 65,000/= for the funeral.

7. The Defendant did not call any witness to testify, but liability was entered at 15:85 in favour of the appellant. The appellant was awarded as sum of Kshs 557, 218/=, which they were dissatisfied with and has triggered this appeal. This Appeal was disposed of by way of written submissions. At the time of writing this judgment, only the Appellant’s submissions were on record.

Submissions 8. The Appellant filed submissions on 24. 01. 2023 and submitted on two grounds. On the issue of the assessment of damages under loss of dependency and loss of life, Counsel relied on the case of Kemfro Africa Limitedt/aMeru Express Services & another v A.M. Lubia and another No 2 [1982-88] L KAR 727, Butt v Khan [1981] KLR 349, Abdi Kadir Mohammed & another v John Wakaba Mwangi[2009] eKLR and Bobmil Industries Limited & another v Kennedy Indakwa Eshiteni [2010] eKLR, It was submitted that the global sum approach that was used by the Trial Court was erroneous and it reached inordinately low award. That the court ought to have considered how much the deceased would have earned upon completion of education and how many years she would have supported the parents and the siblings.

9. Reliance was also placed on the case of Kenya Power & Lighting Company Limited v E.K.O & another [2018] eKLR, MMG Suing as the legal representative of the estate of ZG v Muchemi Teresa , HCCC 519 of 2013 ,Charles Makanzie Wambus v Nthoki Munyao (suing as personal representatives of the estate of Lilian katumbi Nthoki (deceased) [2020] eKLR, Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR and Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR

10. Secondly, on the issue of the Trial Magistrate misappropriating or misapplying the principle applicable in the assessment of damages under the circumstances, it was submitted that the suit was brought under the Fatal Accident Act and the Law Reform Act and ought to have been awarded under both acts. He relied on the case of Pleasant View School Limited v Rose Mutheu Kithoi & another [2017] eKLR, Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (deceased)) v Kiarie Shoe Stores Limited [2015] eKLR, Kemfro (supra) and Tridev Construction v Wekesa Kasembeli , Civil Appeal 121 of 2002.

Analysis and Determination 11. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.

12. As held in Selle & another v Associated Motor Boat Co ltd & others [1968] EA 123 where it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court Is by way of retrial and the principals upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. ( Abduk Hammed saif v Ali Mohammed Sholan [1955], 22 E.A.C.A 270

13. This position had been taken by the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows:-It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their Lordships in the House of Lords in Watt v Thomas (1), [1947] A.C. 484. “My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

14. Guided by the above case, the duty of this appellate court is cut out. This Appeal is based on the award for loss of expectation of life and loss of dependency and more specifically whether the award of loss of earning should have been deducted.

15. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services [1976]” & another v Lubia & another (No 2) [1985] eKLR held that:-“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, 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 damage.”

16. First and foremost, the Appellant contends that the Trial Court applied the wrong principle at arriving at the award of Kshs 600,000 under the limb of loss of dependency using the global sum approach. The deceased in this case was 13 years at the time of the accident having been born on 30. 09. 2005. The age is also confirmed by the death certificate. She was in Standard 5 at [Particulars Withheld] Primary School. The appellant in his submissions had contended that a sum of Kshs 3,706,128/= would suffice using the multiplier approach, Reliance was placed on Abdi Kadir Mohammed & another v John Wakaba Mwangi [2009] & Hassan v Nathan Mwangi Kamau Transporters & 5 others { 1986} KLR 467 .

17. The appellant but in the alternative submitted that if the court was inclined to use the global award method, then the award under loss of dependency should be increased to Kshs 1,500,000/=. Reliance was placed on Bobil Industries ltd & another v Kennedy Indakwa Eshiteni [2010] eKLR, Charles Makenzie wambua v Nthoki Munyao & prudence Munyao (suing as personal representatives of the Estate of Lillian Katumbi Nthoki (Deceased)[2020] eKLR

18. The discretion on whether to use the multiplicand approach or the global award approach has been discussed in a number of cases. In Mwanzia v Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa v Gichumu Githenji Nku HCCA No 15 of 2003 [2007] eKLR, where the court made the following observation;“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 the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the 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.”

19. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

20. In Chen Wembo & 2 others v I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) [2017] eKLR the court stated that:-“Even where there is evidence that a child was undertaking a professional course in a university, was brilliant and promising, the path is always fraught with imponderables. The speculative nature of the matter renders the court’s exercise of its discretion delicate. More so, as in this case where minimal material is supplied to the court by the claimant.”

21. Similarly, in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR it was stated that:“(23)In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.(24)The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

22. In the case of Mwangangi & another v FKM (Suing as Legal Representative of the Estate of the Late AMK) [2021] eKLR, the court was faced with a similar situation where the deceased was 12 years of age, it noted that the use of the multiplier approach was an error and stated as follows;“The court is convinced that the Trial Magistrate erred in principle to apply the multiplier method instead of awarding a global sum. The deceased was still in school. The deceased school report book did establish that the deceased was an average student. In this case a school report was produced that indicated that the deceased was an average student. At one point the deceased failed and was not promoted to the next class. The report indicates that he was always told to improve. It would not be practically possible to determine without speculating whether the child would have lived to the age of 60-80 years, after successful completion of education and employment or business and would hold what position, profession and what amounts of monies he/she would earn. The court’s view is that it would be difficult to determine what the deceased would have turned out to be in life.……….Considering a global sum was not awarded by the Trial Magistrate, where the victim was a child, taking into account inflation and the awards in the above-cited court decisions, the Court finds a global sum of Kshs. 800,000/- reasonable. The same is awarded”

23. Finally the principle’s which ought to guide the court in awarding damages for lost years were succinctly set out by the court of Appeal in Shiekh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 others Civil Appeal No 123 of 1983[1986] KLR 457;[1982-1988] 1KAR; {1986-1989}EA 137 asa)Parents cannot insure the life of their children.b)The death of a victim does not increase or reduce the award for lost years.c)The sum to be awarded is never a conventional one but compensation for pecuniary loss;d)It must be assessed justly with moderation;e)Complainants of insurance companies at the awards should be ignored;f)Disregard remote inscrutable speculative claims;g)Deduct the victim’s living expense’s during the “lowest years” for that would not be part of the estate;h)A young child’s present or future earnings would be Nil;i)An adolescent would real, assessable and small;j)The amount would vary from case to case as it depends on the facts of each case including the victim’s station in life;k)Calculate the annual gross loss;l)Apply the multiplier (estimate number of the lost years accepted as reasonable in each case;m)Deduct the victims probable living expense’s of reasonable satisfying enjoyable life for him or her; andn)Living expense’s reasonable costs of housing, eating, food, clothing insurance, travelling holiday, social and so forth.

24. In William Juma v Kenya Breweries Ltd Nairobi HCCC No 3514 of 1985, Githinji J appreciated that;“In this country, the courts have taken into account the nature of our society and have correctly held that parents expect financial help from their children when they grow up. It is recognized that in our society children render useful services in the house or in the shamba, which relives parents from financial expenditure on, say an employed worker. Those free services can be converted into money. The courts therefore have been awarding a lumpsum figure to compensate parents of young children for pecuniary loss they have suffered or expect to suffer”

25. Based on the above it is clear that the trial magistrate did not err in using the global award method in computing damages for loss of dependency. But on the sum awarded of Kshs 600,000/= I do find the same to have been significantly lower and represents an entirely erroneous estimate of quantum awardable. Having reviewed similar award for fatal injuries involving children of similar age I would enhance the award to Kshs 1,300,000/=. Reliance is placed on Bobil Industries ltd & another v Kennedy Indakwa Eshiteni [2010] eKLR, Charles Makenzie wambua v Nthoki Munyao & prudence Munyao (suing as personal representatives of the Estate of Lillian Katumbi Nthoki ( Deceased)[2020] eKLR

26. On the issue of double compensation, I am guided by the finding of Justice Majanja in the case of Richard Matheka Musyoka & another v Susan Aoko & another (suing s the administrators ad litem of Joseph Onyango Owiti (Deceased) [2016] eKLR where he stated as follows;“The third issue concerns the so-called duplication of awards under the Law Reform Act and the Fatal Accidents Act leading to double compensation. Damages for lost years under the Law Reform Act are recoverable for the estate of the deceased where the deceased died before he could institute an action. Under section 2(5) of the Act such damages are recoverable for the benefit of the estate and are in addition to any rights conferred on dependents of the deceased by the Fatal Accidents Act. A claim under the Fatal Accidents Act is made by the dependents of the deceased who claim for loss of the support the deceased during his lifetime.9. Although the principles of assessment are similar, the court cannot make an award for lost years and loss of dependency as the benefits would ultimately devolve to the same parties under both Acts and this would amount to double compensation. This principal was explained by the Court of Appeal in Kemfro v A. M. Lubia & another [1982-1988] KAR 727 as follows;[The net benefit will be inherited by the same dependents under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the latter Act must be offset by the gain from the estate under the former Act.10. The principal 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 regarding that aspect of the award. At the risk of repeating myself, I would do no better than quote the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited NYR CA Civil Appeal No 22 of 2014 [2015] eKLR that;“[20]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 dependants 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.”

27. For this court to interfere with the award of damages that was given by the Trial Court, the award must be shown to have either taken into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence as was stated in the case of Kemfro Africa Limited t/a Meru Express Services (supra).

28. In this case, the Trial court deducted the loss of expectation of life from the total award which I find was based on the wrong principle.

Disposition 29. Having exhaustively analyzed all the issues raised in this appeal I find that it partially succeeds on the issue of quantum. I do thus make the following orders;a)The finding on loss of dependency in the judgment dated 15th February 2022 by Hon Eunice Kelly (SRM) In Naivasha CMCC No 325 of 2017 is hereby set aside and substituted with an award of Kshs 1,300,000/=b)The award of Kshs 100,000/= for loss of expectation of life, purported to have been reduced taking into account, the award of dependency is reinstated.

30. I therefore award the appellant damages as follows;a)Loss of expectation of life Kshs 100,000b)Pain and suffering Kshs 20,000c)Special Damages Kshs 35,550d)Loss of Dependency Kshs 1,300,000Total Kshs 1,455,550Less 15% (1,455,550 – 218,332. 50=1,237217. 50)

31. Each party to bear their own costs of this appeal, but the respondent will pay the costs of the lower court matter.

32. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 27TH DAY OF JUNE 2023. FRANCIS RAYOLA OLELJUDGEJUDGEMENT DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 27TH DAY OF JUNE, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant