[2024] KEHC 622 (KLR)

Endege & another (Suing as the Legal Representatives in the Estate of John Madede Endege - Deceased) v Benard & another (Civil Appeal 38 of 2020) [2024] KEHC 622 (KLR) (19 January 2024) (Judgment)

Neutral citation: [2024] KEHC 622 (KLR)

Republic of Kenya

In the High Court at Vihiga

Civil Appeal 38 of 2020

PJO Otieno, J

January 19, 2024

Between

Patrick Luyali Endege

1st Appellant

Kenneth Onzere Lwegado

2nd Appellant

Suing as the Legal Representatives in the Estate of John Madede Endege - Deceased

and

Ngeno Benard

1st Respondent

Patrick Waweru

2nd Respondent

(Being an appeal from the judgment of Hon. R.M. Ndombi SRM in Vihiga PMC Case No. 147 OF 2017)

Judgment

Background of the Appeal 1. The appellants, by way of a plaint dated 11th December, 2017, sued the respondents at the Principal Magistrate’s Court in Vihiga for general damages, special damages of Kshs. 21,000/-, interest and cost of the suit in relation to the death of John Madede Endege (Deceased) who succumbed to injuries after being hit by the respondents Motor Vehicle Registration Number KBN 175Q on the 30th day of November, 2016. These allegations were denied by the respondents in a statement of defence dated 6th February, 2018.

2. In a judgment delivered by the trial court on 9th July, 2020, the trial court made the determination that the respondent was liable to the appellant at 100% then assessed general damages of; Loss of dependency Kshs.500,000/-, Loss of expectation of life Kshs.100,000/-, Pain & suffering Kshs.30,000/- Special damages Kshs.21,000/- the court then discounted the sum of Kshs.130,000 as damages under the law reform Act and calculated the net sum awarded at Kshs.391,000 to which sum he awarded in tests and costs of the suit.

3. Aggrieved with the decision of the trial court, the appellant lodged a memorandum of appeal dated 3rd August, 2020 and set out the four grounds of appeal to be that: -a.The learned trial magistrate erred in law and fact in awarding the appellants damages which were inordinately low and disregarded the principle in calculating damages.b.The learned trial magistrate erred in law and fact in writing a judgment which is at variance with the pleadings and against the weight of evidence.c.The learned trial magistrate erred in law by awarding damages under the Law Reform Act then deducting it from the total award thereby negating the need to award damages under the Law Reform Act in the first place.d.The learned trial magistrate proceeded on wrong principles by making unlawful deductions from the total award in damages.”

4. Even when split into four grounds, a proper reading of the grounds reveal that the appeal is grounded on three grounds because ground 3 and 4 are indeed one ground split into two. The appeal that faults the judgment for being against the pleadings and weight of evidence; that the award was too low as to amount to an erroneous estimate of damages and that the deductions made were equally erroneous.

5. The appeal has been canvassed by way of written submissions and each party has filed their respective submissions. In the submissions, the appellant identifies two issues for determination to be; whether the award under the Law Reform Act was justifiably deducted from the award under the Fatal Accidents Act and whether the award for general damages for loss of dependency was inordinately low.

6. On whether the award under the Law Reform Act was justified to be deducted from the award under the Fatal Accidents Act, the appellants argue that they were awarded a sum of kshs.500,000/- for loss of dependency, Kshs.100,000 for loss of expectation of life, Kshs.30,000/- for pain and suffering and Kshs.21,000 for special damages and that the court was wrong to term the Kshs.100,000/- and Kshs.30,000/- as negative awards and thus awarding total damages of Kshs.391,000/-. They claim that an award under the Law Reform Act is not one of the benefits to be excluded from being taken into account when assessing damages under the Fatal Accidents Act and places reliance on the case of Crown Bus Services Ltd & 2 others v Jamila Nyongesa and Amida Nyongesa (legal representatives of Alvin Nanjala (Deceased)(2020) eKLR, Kemfri Africa Limited T/a Meru Express Services (1976) & another v Lubia & another (No.2) (1987) KLR 30 and Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited all for the proposition that taking into account is not the same as deduction.

7. On whether the award for general damages for loss of dependency was inordinately low, the appellant submits that the deceased was 19 years old and a form three student at Buyusuf Secondary School and that since his life was cut short unexpectedly, his dependants are entitled to adequate compensation as envisioned under the Law Reform Act and propose of Kshs.1,200,000/- for loss of dependency.

8. In the submissions, the respondents point out that the appeal is purely challenging the assessment of damages due and thus urges the court to follow the principles laid in Peters v Sunday Post Ltd (1958) EA 424 by reevaluating and reappraising the entire evidence with a view to coming to own conclusions. It is then underscored that the duty to assess damages invokes the discretional jurisdiction of the court and therefore it takes a strong case for an appellate court to interfere unless it be demonstrated that the award is so low as to amount to a misery or too high and excess as to demonstrate a wholly erroneous estimate of damages.

9. On whether the trial magistrates’ awards were inordinately law, the respondent submits that the global award of Kshs.500,000/- for loss of dependency was appropriate since the dependants as pleaded were siblings to the deceased and that no documents were availed by the appellants to prove that the deceased was a student and place reliance on the case of Kenya Breweries Ltd v Soro (1995) eKLR and Nairobi HCCC No. 12012 of 1992 Kinyozi Kitungi v Simon Okoth Obor & another.

10. On whether the deduction under the Law Reform Act was just, the respondent contends that the beneficiaries under the Law Reform Act and under the Fatal Accidents Act were the same hence the deduction was just and places reliance on the case of Simeon Kiplimo Murey & 3 others v Kenya Bus Management Services Ltd & 4 others, Civil Appeal No. 2 of 2013, David Kajogi M’mugaa v Francis Muthomi, Civil Appeal No. 118 of 2010, Francis Wainaina Kirungu (suing as the personal representatives of the Estate of John Karanja Wainaina (Deceased) v Elijah Oketch Adellah (2015) eKLR and Kemfro v A.M Lubia and Olive Lubia (1982-1988) KAR 727 on when duplication occurs and stresses the fact that where the beneficiaries under the two statutes are the same, care need to be taken.

Issues, Analysis and Determination 11. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the appellants and the respondents and discerns the following issues for determination: -a.Whether the award for general damages for loss of dependency was inordinately low?b.Whether the deduction of the award under the Law Reform Act was just?c.Whether the judgment was against the grain of the pleadings and the evidence led?

Analysis Whether the award for general damages for loss of dependency was inordinately low 12. As a general rule, assessment of damages lies in the discretion of the trial court and an appellate court will only interfere with the award of damages where it is inordinately high or low as to represent an 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. See Butt v Khan (1977) I KAR and Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd (2015) eKLR

13. Loss of dependency is a claim under the Fatal Accidents Act Cap 32, Laws of Kenya. Persons who can claim benefits under the Fatal Accidents Act are listed under section 4(1) of the Act to be the immediate family members of deceased being the wife, husband, parent and child of the person whose death was so caused.

14. In this appeal, the persons claiming under the Fatal Accidents Act according to paragraph 7 of the plaint are Patrick Luyali Endege, a brother to the deceased and Esther Musimbi, a sister to the deceased. Siblings to a deceased person are not among the persons envisaged under section 4(1) of the Fatal Accidents Act and for that reason I find that the trial court erred in making an award of loss of dependency. In John Mungai Kariuki & another v Kaibei Kangai Ndethiu & 2 others [2020] eKLR the court held: -“The brothers and sisters of the deceased are not dependants for purposes of the statute and language of the statute cannot be read, even by creative interpretation, to expand the list of dependants to include siblings of the deceased. Even in the cases relied on by the appellant, the principle that in African culture children are expected to support their parents is supported by the words of the statute as the deceased parents are named a dependants.”

15. In this case therefore the claim for lost dependency did not lie because the claimants were not dependants. However, it was pleaded that the suit was brought under both law Reform Act and the Fatal Accidents Act. While the damages under the Fatal Accidents Act go to the class of dependants as named in the statute, damages under Law Reform Act are pursued on behalf of the estate.

Whether the deduction of the award under the Law Reform Act was justified 16. The trial court awarded Kshs.30,000/- for pain and suffering and Ksh.100, 000/- for loss of expectation of life under the Law Reform Act and a sum of Kshs.500,000/- for loss of dependency under the Fatal Accidents Act. The trial court then proceeded to deduct the award under the Law Reform Act from the award under the Fatal Accidents Act. The question that arises is whether this deduction was lawful and in making that determination this court will refer to the court of appeal decision 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: -“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.21. 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, that: -“6. 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.”

17. That said, a deduction ought to be made where the beneficiaries under the Law Reform Act and the beneficiaries under the Fatal Accidents Act are the same.

18. Regardless, it was my finding hereinabove that the award of damages under the head loss of dependency by the trial court was erroneous. Having disregarded the claim under the Fatal Accidents Act, the claim under the Law Reform Act ought to be awarded in full.

19. For the reasons discussed above, this court makes the following orders: -a.The award of damages under the Law Reform Act that is Kshs.30,000/- for pain & suffering and Kshs.100,000/- for loss of expectation is affirmed.b.The award of Kshs.500,000/- for loss of dependency is set aside.c.I make no order as to costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JANUARY, 2024. PATRICK J O OTIENOJUDGEIn the presence of:No appearance for partiesCourt Assistant: Polycap