[2017] KEHC 1451 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 71 OF 2014

FLORENCE GATHEI MIANO.................APPELLANT/DEFENDANT

-V E R S U S –

MARY BONIFACE MUSYOKA & JACKSON WAMBUA

MUSYOKA (as the legal representatives of the estate

Of BONIFACE MUSOKA WAMBUA-deceased..........RESPONDENT

(Being an appeal from the judgement of Hon. Mr. D. A. Orimba (Ag. SPM) at the Chief Magistrate’s Court at Thika Law Courts delivered on 8th June 2013 in Thika CMCC No. 975 of 2010)

JUDGEMENT

1) Mary Boniface Musyoka and Jackson Wambua Musyoka (as the legal representatives of the estate of Boniface Musyoka Wambua - deceased) the respondents herein, filed a compensatory suit against Florence Gathei Miano, the appellant herein, for damages under the Law Reforms Act and the Fatal Accidents Act. Boniface Musyoka Wambua (now deceased) when walking along Nairobi-Thika Road on or about 1/07/09 at Juja, was knocked down by motor vehicle registration no. KXD 228 when it lost control and veered off the road.

2) The respondent entered into a consent on liability which was adopted on 18th September 2012. The consent was to the effect that the respondent would shoulder 20% liability and the appellant 80% liability. In the end judgement was entered for the respondent as against the appellant in the sum of ksh.936,000/= for general damages for pain and suffering under the Law Reform Act and Fatal Accidents’ Act and special damages. Being dissatisfied with the decision of Hon. D. A. Orimba the learned Senior Principal Magistrate the appellant preferred this appeal.

3) The appellant raised the following grounds of appeal in its memorandum:

1. That the honourable trial magistrate erred in law and in fact in holding the appellant liable without any sufficient evidence in that regard having been adduced.

2. That the honourable trial magistrate erred in law and fact in accepting the respondent’s bank statement as inclusive proof of earnings.

3. That the honourable trial magistrate erred in law and fact by not considering the age of the deceased when calculating his life expectancy.

4. That the honourable trial magistrate erred in law and in fact in awarding the respondent the sum of ksh.1,934,000/= as general damages which amount is excessive and punitive in the circumstances.

4) The first ground of appeal is whether or not the trial magistrate erred in law and fact in holding the appellant 80% liable without any sufficient evidence in that regard having been adduced. When the suit came up for hearing, the learned trial Senior Principal Magistrate on 10/9/2012, parties recorded a consent judgement on liability in the ratio of 80%: 20% in favour of the plaintiff (respondent) against the defendant (appellant). The appellants cannot feign ignorance on the same. It is from the consent on liability that the parties agreed to proceed by way of evidence to enable the trial court determine quantum of damages payable to the respondent herein.

5) The 2nd ground of appeal is whether or not the trial magistrate erred in law and fact in accepting the respondent bank statement as conclusive proof of earnings. PW1 (the respondent) and wife to the deceased (Boniface Wambua) stated that the deceased used to supply building materials and was getting ksh.50,000/= per month. PW1 was issued with statement of account of the deceased. The statement of accounts from Co-operative Bank of Kenya from September 2008 to Jan 2009 is what the trial magistrate relied on to arrive at an average of ksh.30,000/= as the deceased monthly income. The appellant submits that the trial magistrate should have been guided by the estimates for general workers under the subsidiary legislation made under the labour institutions Act, 2007 or the determination of income whichever was higher. This would have given a monthly income of ksh.8,000/= as the modest figure for a 57 years old man with a family under the aforementioned Act under legal Notice No. 38 of 2006.

6) The appellant submits that the deceased was a businessman, there was no evidence adduced to prove the same. The deceased ought to have kept some business records. Those records would have corroborated the evidence the bank statement adduced in assessing the deceased’s monthly income.

7) The respondent on the other hand submits that the learned trial magistrate finding under this head cannot be faulted. The respondent cited the case of Jacob Ayiaga Manja & Another –vs- Simeon Obaya CA 167/200(2005) eKLR where the court of appeal observed inter alia that:

“we do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates, and that the only way of proving his earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihoods in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

8) Having re-evaluated the evidence before the trial court and the Submissions filed, I am satisfied that the learned trial magistrate’s finding under this head ought not to be disturbed.

9) The third ground of appeal is whether or not the learned trial magistrate erred in law and fact in his life expectancy multiplier. The appellant submits that a multiplier of 3 years would have been appropriate in that the deceased was 57 years at the time of his death. The deceased would have worked upto 60 years (the retirement) age for civil servants giving rise to 60-57=3.

10) The respondent on the other hand submits that the multiplier of 10 applied by the learned trial magistrate was well founded. The learned trial magistrate used a multiplier of 10, bearing in mind that the deceased was in a private business and could have worked upto 70 years but bearing in mind the uncertainties of life, the trial magistrate gave the deceased a working age of 67 years. Thus arriving at the multiplier of 10. The trial magistrate cited the case of Phoebe Wambui –vs- Armed Forces Canteen Organization, (2010) eKLR where the deceased was 62 years and the court used a multiplier of 8 years. I am satisfied that the trial magistrate finding under this head was well founded.

11) The fourth ground of appeal is whether or not the learned trial magistrate erred in law and in fact in awarding the respondent the sum of ksh.1,934,000/= as general damages. The appellant submits that damages awarded by the trial magistrate were excessive and punitive in the circumstances. The magistrate applied a multiplier of 10 years and a dependency ratio of 2/3, which case will be different if a multiplier of 3 could have been used. The appellant thinks that the 30,000/= monthly income used led to the final figure of damages which was erroneous.

12) The respondent on the other hand submits that the trial magistrates award of kshs.1,934,000/= as general damages was justified in the circumstances. The respondent cited Lord Scarman, in Gammel –vs- Wilson (1981) 1 ALLER 578, that spoke of the assessment of damages in such circumstances in which , he said inter alia that:

“the correct approach n law to the assessment of damages in these cases presents, my lords, no difficulty, though the assessment itself often will. The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime....”

13) The deceased died on the spot and was 57 years of age. The respondent sued under the Law Reform Act and the Fatal Accidents Act. PW1 testified that she was a housewife and was entirely dependent on the deceased. Further, it was PW1’s testimony that the deceased supported their six children. The trial magistrate factored this in arriving at 2/3 dependency ratio as stated in the judgement. The trial magistrate was persuaded by the case of Kemfro Africa Ltd –vs- Lubia & another 1982 – LKAR 727. This case laid down the principle that the net benefit inherited by the defendants under the Law Reform Act must be taken into account for the damages awarded under the Fatal Accident Act because the loss suffered under the Act must be offset by the gain of the estate under the former act.

14) The trial court awarded:

General damages 30,000x10x12x2/3=2,400,000/=

Less 20% 480,000/=

912,000/=

Pain and suffering 20,000 Less 20% 14,000/=

Special damages 37,400/=

Total 963,400/=

Costs of the suit were also allowed.

15) After a careful evaluation of the evidence before the trial court and the submissions filed herein, I am convinced that the award of damages by the trial magistrate was well founded and ought not to be disturbed.

16) In the end, this appeal is hereby ordered dismissed with each party bearing its own costs.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................for the Respondent