[2022] KEHC 10106 (KLR)

Gatitu (Suing as the Administrator of the Estate of the Late Florence Nyokabi Gatitu) v Okumu (Civil Appeal E024 of 2021) [2022] KEHC 10106 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10106 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E024 of 2021

RB Ngetich, J

July 21, 2022

Between

David Kimani Gatitu (Suing as the Administrator of the Estate of the Late Florence Nyokabi Gatitu)

Appellant

and

Andrew Otieno Okumu

Respondent

Judgment

1. This appeal arises from a suit filed by the appellant/plaintiff as a legal representative of the Estate of Florence Nyokabi Gatitu by a Plaint dated April 23, 2019following an accident which occurred on or about the June 10, 2018at around 11. 30 am along Nairobi- Naivasha Highway where the deceased was hit by Motor Vehicle Registration Number KCJ 858C leading to fatal injuries.

2. The trial court delivered ruling on January 28, 2021in the following terms:-a.Liability apportioned in the ratio of 70:30 as between the appellant and the Respondent.(i)Damages awarded(ii)General damages for pain and suffering Kshs. 20,000/=(iii)Loss of expectation of life Kshs. 100,000/=(iv)Loss of dependency Kshs. 250,440/= and(v)Special damages Kshs.28,225/=(vi)Less 30% contribution Kshs. 119,599. 50/=b.Costs and interest of the suit to the Appellants/plaintiff.

3. Aggrieved by the said judgment the appellant filed a Memorandum of Appeal filed on February 18, 2021citing only 1 ground:a.That the learned trial magistrate erred in law and in fact in assessing the general damages under loss of dependency at Kshs. 250,440/=and by failing to distinguish the applicability of the Fatal Accidents Act and the Law Reform Act.

4. The appellant urged the court to allow the appeal and reassess the general damages payable at Kshs.2,533,440/=.

5. Directions were taken for the appeal to be disposed of by way of written submissions on May 18, 2022, but counsel had already filed their respective submissions.

Appellant’s Submission 6. The appellant submitted that the trial court failed to award damages for lost years awardable under the Law Reform Act as per section 2(i) and cited the case of HCC at Machakos Civil Appeal No. 73 of 2012, Janet Okeye vs James Ithau Mathenduwhere the magistrates court had declined to grant a claim for lost years alleging it can only be brought by a dependant; the appellate court held that the learned magistrate was wrong and proceeded to assess the damages for lost years and made award under that head.

7. Further, counsel urged the court to alter the trial court’s finding and adopt a multiplier of 14 years as opposed to the 5 years adopted by the trial court. Counsel urged the court to find the deceased would have worked up to 75 years as she was self-employed.

Respondent’s Submissions 8. Counsel submitted the trial court did not error in adopting the global sum approach as the appellants did not avail any documentary evidence on proof of income of the deceased.

9. In addition, counsel urged the court to adopt the multiplier of 4 years awarded by the trial court as the deceased died aged 61years. Cited the case of Hardew Kaur Dhanoa vs Multiple Hauliers EA Ltd (2013) eKLR where the court adopted a multiplier of 6years the deceased died aged 62 years.

Analysis and Determination 10. Record shows that on October 1, 2020 the Appellant and the Respondent entered into consent in the following terms;a.An interlocutory judgment is hereby set aside with no orders as to costs.b.Judgment on liability entered in favour of Plaintiff against Defendant in the ratio of 70:30. c.The documents in Plaintiff’s list of documents dated 3. 4.2019 be admitted as exhibits in the order listed Pexh1-9. d.Hearing to proceed on the issue of quantum.

11. In view of the consent filed, the only issue that remained for the trial court’s determination is assessment of damages.The appellant is aggrieved on assessment of damages under loss of dependency.I will therefore consider whether the trial court acted on the wrong principle in awarding 250,440/= under the head loss of dependency.

12. I am guided by the court of appeal decision in Bashir Ahmed Butt v Uwais Ahmed Khan {1982-88} KAR 5 where the Court held as follows:-“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that the court misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

13. In Mbogo & Another versus Shah [1968] E.A. 93, it was held: -“An appellate court will interfere if the exercise of the discretion is clearly wrong because the Judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result, there has been injustice”

14. From the foregoing, the trial court is clothed with the discretion to award damages and the appellate court will not interfere with the award of the trial court not unless it is satisfied it proceeded on wrong principles or misapprehended the evidence and arrived at a figure which is inordinately high or low.

15. From the evidence adduced in this court, the deceased died aged 61years. She was working as a market vendor in the business of buying and selling potatoes. The appellant has not attached proof of the monthly salary earned by the deceased.

16. The trial court adopted the minimum wage of Kshs. 12,522/= in the absence of proof of the monthly salary which in my view is reasonable as no evidence of earnings per month was availed to the court.

17. In the lower court, the appellant asked for multiplier of 6 years while the defendant proposed multiplier of 4 years .The court applied multiplier of 5 years. I take note of the fact that the deceased was 61 years old and even if she was in good health, there is no certainity that she would have lived or worked upto the age of 75 years due to vagaries of life; and in my view multiplier of 5 years was reasonable.

18. I note that the court applied a ratio of 1/3 which brought the figure to 250,440/=.

19. The award of Kshs. 20,000/= under the heading of pain and suffering and Kshs. 100,000/= under the head loss of expectations of life is not disputed by the appellant and thus I will not disturb the trial court award on the same.

20. On whether the trial court erred in failing to award of damages under loss of dependency, I have looked at the case of Sheikh M Hassan v Kamau Transporters [1982-88] I KAR 946 where the Court laid down guidelines for assessing damages for lost years under the Law Reform Act as hereunder:-(a)“The sum to be awarded is never a conventional one but compensation for a pecuniary loss.(b)It must be assessed justly and with moderation.(c)Deduct the victims living expenses during the “lost years” for they would not form part of the estate.(d)A young child’s present or future earnings in most cases would be nil.(e)An adolescent would usually be real, assessable and small.(f)Calculate the annual gross loss.(g)Apply the multiplier (estimated number of “lost working years” accepted as reasonable in each case).(h)Deduct the victim’s probable living expenses of a reasonably satisfying enjoyable life for him or her.”

21. Award under both Acts is in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. Award under both Acts do not therefore amount to double compensation. The deceased’s life expenses should however be deducted and in my view it should have been one third and not two third. Two third should go to the family . I accordingly award damages for loss of dependency calculated as hereunder:-a.12,522 x5 x12 x 2/3=500,880

22. From the foregoing,the appeal partly succeed.

23. Final Orders:- 1. Liability to remain as consented to by the parties.

2. Award under loss of dependency to be Kshs 500,880/=.

3. Awards under the other heads to remain.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 21ST DAY OF JULY, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkS.N. Ngaya for AppellantMs. Njau for Respondent