[2022] KEHC 14914 (KLR)

Ganda v Kiplagat (Civil Appeal 9A of 2019) [2022] KEHC 14914 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14914 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 9A of 2019

RL Korir, J

November 9, 2022

Between

Gregory Ochieng Ganda

Appellant

and

Yegon Wesley Kiplagat (suing as the Administrator and Legal Representative of the Estate of Onesmus Kipyegon Biomdo - Deceased)

Respondent

(Being an Appeal from the Judgment of the Senior Principal Magistrate, P. Achieng dated 25th March 2019 in the Magistrate’s Court at Bomet, Civil Suit Number 65 of 2015)

Judgment

1. The respondent (then plaintiff) sued the appellant (then defendant) for General and Special Damages that arose out of a road accident that involved Motor Cycle Registration Number KMCF xxxx that was controlled by the deceased (Onesmus Kipyegon Biomdo) and Motor Vehicle Registration Number KBH xxxx that belonged to the Appellant.

2. On 17th September 2018, parties recorded a consent on liability in the ratio of 80:20 in favour of the Respondent. The same was adopted as an order of the court.

3. Judgment in the lower court was delivered on 25th March 2019 in the following terms; Pain and Suffering Kshs 20,000

Loss of Expectation of life Kshs 100,000

Lost years Kshs 2,400,000

Special Damages Kshs 169,500

The total sum for General and Special Damages less 20% contribution was Kshs 2,151,600.

4. Being dissatisfied with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 24th April 2019 and he relied on the following grounds:-I.That the learned Magistrate erred in law and in fact in pronouncing Judgment in favour of the Respondent on liability when there was no legal basis of doing so in light of there being no sufficient evidence adduced before her.II.That the learned Magistrate erred in law and fact in finding that the Appellant was liable for the accident whereas negligence was not proved against him.III.That the learned Magistrate erred in law and fact by failing to take into consideration the evidence presented by the appellant.IV.That the learned magistrate erred in law and fact by pronouncing Judgment in favour of the respondent whereas the respondent had not proved the Appellant’s liability on a balance of probabilities.V.That the learned Magistrate erred in law and in fact in awarding the Respondent a sum of Kshs 2,151,600 as general damages, which award was inordinately excessive.VI.That the learned Magistrate erred in law and fact in awarding the respondent a generous award on loss of dependency when there was no proof of income by the respondent, or alternatively when the income pleaded was lower than the one awarded.VII.That the award of Kshs 2,151,600 is so manifestly high as to amount to an erroneous estimate of the damage suffered by the respondent.VIII.That the learned Magistrate erred in law and fact in not taking into account the authorities and submissions of the appellant and relied entirely on the submissions filed by the respondents counsel.IX.That the learned Magistrate erred in law and fact in failing to carefully consider the loopholes in the Respondent’s evidence.X.Thatthe Judgment of the learned trial Magistrate is against the law and weight of the evidence on record.XI.That the learned trial magistrate totally misapprehended the facts of the case leading to erroneous application of the law.

5. The appellant filed his supplementary record of Appeal dated 28th June 2021 where he attached his written submissions from the trial court.

The Plaintiff’s/respondent’s Case 6. Through the plaint and his evidence in the trial court, the respondent stated that on 22nd May 2013, his father was riding Motor Cycle Registration Number KMCF xxxx along Bomet-Narok road around Longisa when Motor Vehicle Registration Number KBH xxxx knocked him down causing fatal injuries to his father, Onesmus Kipyegon Arap Biomdo (hereinafter referred to as the deceased). It was the respondent’s further case that the said Motor Vehicle belonged to the appellant.

7. The respondent stated that the appellant was negligent in causing the accident and particularized the negligence in paragraph 4 of the plaint. That as a result of the accident, the estate of the deceased suffered loss and damage. It was the respondent’s further case that the deceased had dependants and the said dependants were listed in paragraph 5 of the Plaint.

8. It was the respondent’s case that at the time of the death of the deceased, he was aged 58 years and was in perfect health and working condition. That he used to earn Kshs 150,000 per month from his businesses and he used that money to maintain his dependants.

9. The respondent’s claim against the appellant was for Special and General Damages (under the Law Reform Act and Fatal Accidents Act).

The Respondent’s Submissions. 10. The respondent submitted that the appellant’s claim of faulting the liability was baseless as parties had entered into a consent apportioning liability in the ratio of 80:20 in favour of the Respondent. That the issue of proving liability on a balance of probability did not exist.

11. It was the respondent’s submission that the award of Kshs 20,000 for pain and suffering was inadequate. That even though the deceased died on the spot, he suffered tremendous pain before his demise. That the same ought to be reviewed up to Kshs 50,000. It was his further submission that the award of Kshs 100,000 for loss of expectation of life was reasonable.

12. The respondent submitted that the Plaintiff died at the age of 58 years and at the time of his death, he was a businessman in the hospitality industry and that he also owned a motor cycle which generated daily income. That the deceased earned a net profit of Kshs 150,000 per month. It was the respondent’s further submission that the deceased had 11 dependants and it was reasonable to expect that he would spend a large chunk of his income on his dependants. That the dependency ratio of 2/3 was reasonable.

13. It was the respondent’s submission that the deceased being a businessman would have run his business up to the age of 80 years and that due to the vagaries of life, the deceased might have worked up to the age of 70 years. That a multiplicand of 12 would be reasonable. It was the Respondent’s further submission that the award of Kshs 2,400,000 was reasonable.

14. The respondent submitted that he proved his claim for Special Damages as he produced receipts from Harmony Funeral Services and Harmony Classic Events.

The Defendant’s/appellant’s Case. 15. The appellant through his defence denied the occurrence of the accident and any negligence on his part.

16. It was the appellant’s case that if any accident happened, it was caused solely by the negligence of the respondent. He particularized the negligence in paragraph 5 of the plaint.

17. The appellant stated that motor vehicle registration number KBH xxxx was well serviced and in good condition.

18. The appellant did not call any witness or file any documents in aid of his case in the trial court. He also failed to file written submissions in the present Appeal.

19. The duty of the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Abok James Odera T/A AJ Odera & AssociatesvsJohn Patrick Machira T/A Machira & Co Advocates (2013) eKLR.

20. I have read through and considered the Record of Appeal dated 19th January 2021, the Memorandum of Appeal dated 24th April 2019 and the respondent’s Written Submissions dated 16th September 2022 and the only issue for my determination was whether award for general damages was inordinately high.

21. Before evaluating the damages, I proceed to dismiss Grounds (i),(ii),and (iv) in the Memorandum of Appeal which relate to liability as the parties recorded consent on liability before the trial court on 17th September,2018. I also dismiss Grounds (iii) and (vii) as the Appellant did not tender any evidence in the trial court. These Grounds only go to demonstrate that the appellant’s Counsel was not familiar with the proceedings.

22. In the case of Johnson Evan Gicheru Vs Andrew Morton & Another(2005) eKLR, the Court of Appeal stated that:-“In order to justify reversing the trial judge on the question of the amount of damages it was generally necessary that the court of appeal should be convinced that either the judge acted upon some wrong principle of law or, that the amount awarded was so extremely high or so very small as to make it, in the judgement of the court, an entirely erroneous estimate of the damage to which the appellant was entitled”.

23. In the case of Tayab Vs Kinanu(1983) eKLR, the Court of Appeal commented as follows:-“I would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

24. In regard to the pain and suffering, the trial court awarded Kshs 20,000. The trial court stated that the basis of the award was that the deceased had died on the spot. In the case of in Acceler Global LogisticsvGladys Nasambu Waswa & Another(2020) eKLR, Mativo J (as he was then) observed:-“It is settled law that the personal representative of a deceased person can recover damages that the deceased could have recovered had he survived and which were a liability on the wrong doer at the date of death. This was enunciated in the celebrated decision of Lord Green in Rose vs. Ford.It is not in dispute that the deceased sustained serious injuries and that the deceased died on the spot. This raises a fundamental question of what each unit of pain and suffering is worth. This question has in my view been authoritatively discussed in an article in the International Review of Law and Economics entitled "Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards" by W. Kip Viscussi who argues that: -"Pain and suffering is generally recognized as being legitimate component of compensation but one for which we have no accepted procedure of measurement ... Pain and suffering is by no means a negligible component of awards ... The general implication is that pain and suffering awards are not entirely random or capricious."The position laid down in Rose vs. Ford is that where the period of suffering is short, only nominal damages are awarded…………”

25. In the case of Sukari Industries Limited V Clyde Machimbo Jumba (2016) eKLR Majanja J stated:-“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged after death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years………”

26. PW1 testified that the deceased died on the spot and when he reached the accident scene, the deceased’s body had already been taken to the mortuary. He produced a Certificate of Death that was marked as P Exh 2 which indicated that the deceased died on 22nd May 2013, the same day the accident occurred. The Appellant did not controvert the evidence tendered by PW1. It is therefore my finding that the deceased died on the spot and the award of Kshs 20,000 was reasonable.

27. The deceased’s life expectation was diminished by the injuries he sustained in the accident and therefore his dependants were entitled to be compensated in damages for loss of expectation of life. I am persuaded by the case of Mercy Muriuki & Another Vs Samuel Mwangi Nduati & another (suing as the Legal Administrator of the estate of the late Robert Mwangi)(2019) eKLR where Muchemi J. stated:-“The generally accepted principle therefore 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”.(See also Lucy Wambui Kohoro vs Elizabeth Njeri Obuong(2015) eKLR and in Makano Makonye Monyanche vs Hellen Nyangena (2014) eKLR)

28. The courts have overtime adopted the figure of Kshs 100,000/= for loss of expectation of life and I see no reason why this court would interfere with the trial court’s award of Kshs 100,000. It is my finding that the said award was reasonable.

29. On the issue of loss of dependency, section 4 of the Fatal Accidents Act provides as follows-“Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct”.

30. The claim for loss of dependence constitutes the multiplicand, the dependency ratio and the multiplier. (See Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR).

31. The Respondent claimed that the deceased earned Kshs 150,000 and that he also had income from his Motor Cycle business commonly referred to as boda boda. PW2 testified that she made entries in the books of account of the deceased’s hotel. She produced the ledger book as P Exh 13. PW1 testified upon cross examination that the deceased earned Kshs 500 per day from his boda boda business.

32. A look at the Ledger (Exhibit 13) reveals that the entries made were generally expenses, purchases, wages and net sales. There was no explanation from PW2 how they arrived at the monthly sum of Kshs 150,000 which was net profit. In fact, upon cross examination, PW2 stated that she was not an accountant. Additionally, there was also no evidence to back up the assertion that the deceased earned Kshs 500 per day from his Motor Cycle.

33. The trial court awarded Kshs 2,400,000 as loss of dependency. It broke down the award by reasoning as follows that since the trial court could not confirm the entries in the books of accounts, it stated that Kshs 50,000 was a reasonable sum for the deceased’s monthly earnings. That since the deceased was a business man, he would have been expected to be active in business up to the age of 70 years. The trial court then used the dependency ratio of one third as it noted that the deceased’s children were all adults.

34. In the case of Moses Mairua MuchirivsCyrus Maina Macharia (Suing As The Personal Representative Of The Estateof Mercy Nzula Maina (Deceased) (2016) eKLR, Ngaah J. held:-“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.”

35. The same was adopted in an earlier decision of Mary Khayesi Awalo &anothervsMwilu Malungu & Another [1999] eKLR where Nambuye J. (as she then was) stated that:-“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books”.

36. I am persuaded by the two cases above. In the circumstances of the present case, I agree with the trial court’s award of Kshs 50,000 as monthly income. I find the award reasonable and the same is upheld.

37. On the issue of multiplier, the respondent submitted that the deceased died aged 58 years old and that he would have been expected to work until he was 70 years old. That therefore a multiplier of 12 would be reasonable. The trial court in its Judgment adopted the same reasoning and used the multiplier of 12.

38. According to the Death Certificate, the deceased died at the age of fifty eight (58) years. There is no retirement age for business people or general labourers. (See Melbrimo Investment Company Limited v Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased)[2022] eKLR)

39. I agree with the submission of the respondent that If the deceased remained in good health, it would have been expected that he could have worked for another ten to twelve (10-12) years. It is my finding that the multiplier of 12 used by the trial court was reasonable in the circumstances.

40. With respect to dependency, It is trite law that dependency is a question of fact to be established in each case. (See Rodgers Kinoti vs Linus Bundi Murithi & another (2022) eKLR)

41. The respondent submitted that the deceased spent a large chunk of his income on his 11 dependants and that the ratio of 2/3 would have been appropriate and reasonable. The trial court noted that all the deceased’s children were adults and it therefore used the ratio of 1/3.

42. The particulars of the deceased’s dependants were contained in paragraph 5 of the Plaint and the age of the dependants ranged between 20 -55 years with the exception of two dependants who were the deceased’s grandchildren.

43. It was not stated in evidence the extent to which the dependants relied on the deceased for their subsistence. PW1 who was the deceased’s eldest child testified that he was employed by Kenyatta University. This then meant that he had a stable income and was not entirely dependent on his father.

44. I agree with the trial court’s use of the ratio of 1/3. It is assumed that since all his children were above 18 years, each of them would have some form of income, stable or not and that the deceased would have spent a 1/3 of his income on them. I therefore see no reason to disturb the ratio of 1/3 as the dependency ratio.

45. With regard to Special Damages, section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows:-In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought.

46. The respondent stated that he had incurred a cumulative Kshs 196,700 being funeral expenses, charges incurred in taking out Letters of Administration and Mortuary Fees. These were Special Damages that ought to be proved.

47. The respondent produced receipts from Harmony Funeral Services dated 26th May 2013 and another one from Harmony Classic Events dated 31st May 2013 which indicated that the Respondent had spent Kshs 169,500. The Receipts were produced as a bundle that was marked as P Exh 13. The respondent also produced a Mortuary Fee receipt marked as P Exh 11 which showed that he had incurred Kshs 7,200. I have not found any evidence on record to support the assertion that he incurred Kshs 20,000 for taking out of the Letters of Administration.

48. It is salient to note that the veracity of the aforementioned receipts was not challenged or tested in cross examination.

49. Flowing from the above, it is my finding that the trial magistrate erred in awarding Kshs 169,500 as Special Damages. The respondent had proved that he incurred Kshs 7,200 as Mortuary Fees by producing the receipt which was not factored into the award. Therefore the award of Kshs 169,500 is set aside and substituted with Kshs 176,700 as Special Damages.

50. In light of the foregoing, I have found no merit in the Appeal dated 24th April 2019 It is dismissed.

51. In the final analysis, the award to the respondent is varied as follows:-i.Pain and Suffering Kshs 20,000ii.Loss of expectation of life Kshs 100,000iii.Loss of Dependency Kshs 2,400,000Kshs 2,520,000Less 20% Contribution Kshs 504,000Kshs 2,016,000Add Special Damages Kshs 176,700TotalKshs 2,192,700

52. The respondent in awarded costs of the suit in the lower court and interest thereon and costs of this appeal.

53. Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF NOVEMBER, 2022. .........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Ms. Chemutai holding brief for Mr. Tanui for the Appellant Non Appearance for the Respondent; and Kiprotich (Court Assistant)