[2023] KEHC 27244 (KLR)

General Cargo (Transport) Limited v Ndeme (Suing as administrator of the Estate of Mwadingo Mkama Beja - Deceased) (Civil Appeal 174 of 2022) [2023] KEHC 27244 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27244 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 174 of 2022

DKN Magare, J

December 14, 2023

Between

General Cargo (Transport) Limited

Appellant

and

Njira Chitumbo Ndeme (Suing as administrator of The Estate Of Mwadingo Mkama Beja - Deceased)

Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. E. Muchoki, Resident Magistrate dated 15/9/2022 arising from Mombasa CMCC No. 990 of 2019.

2. The Appeal is on quantum only. In the Amended Memorandum of Appeal dated 9th November 2022, the Appellant substantially appeals against the Judgement of the Trial Court on the ground that the court erred in its assessment of damages for Loss of Dependency and arrived at an erroneous estimate of damages that were inordinately high.

3. The Plaint dated 21st June 2019 claimed damages for an accident that occurred on 3/11/2015 when the Deceased was lawfully riding Motor Cycle Registration Number KMDJ 337 when the Defendant’s Motor Vehicle Registration Number KBQ 280P/ ZA 6395 Causing the same to collide head on with the Deceased’s Motorcycle as a consequence of which the Deceased sustained fatal injuries.

4. It was pleaded that the Deceased was at the time of his death 25 years in good health and earned income as bodaboda rider at Kshs. 5,000/- per day.

5. The Plaintiff set forth particulars of negligence for the accident motor vehicle and pleaded Special Damages of Ksh. 30,600/= with General Damages.

6. The Appellants entered appearance and filed Defence denying the particulars of negligence and injuries pleaded in the Plaint.

7. The Trial Court heard the parties and proceeded to render judgement on 27th January 2023. In the Judgement, the Court awarded in favor of the Respondent as follows:a.Liability 100%b.General Damages for Loss of Dependency Kshs. 1,200,000/=c.Damages for Loss of Expectation of Life Kshs. 100,000/=d.Damages for pain and suffering Kshs. 100,000/=e.Burial expenses Kshs. 30,600/=Total Kshs. 1,430,600/=.

8. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal against the finding on damages for loss of dependency and pain and suffering. Special damages and Damages for Loss of Expectation of Life are not subject to this Appeal because the Appellant did not challenge them.

The Respondent’s case 9. The Respondent as Plaintiff in the lower court suit testified as PW1. She relied on her witness statement and bundle of documents. It was her case that she was the widow and personal representative of the estate of the Deceased.

10. Further, the PW1 testified that they had five children with the Deceased and he was a bodaboda rider who used to earn Kshs. 5,000/= per day from his occupation.

11. PW2, the Police Officer testified that he was Inspector Mole Hassan in charge of Mariakani Traffic Base.

12. It was his case that the deceased was run over by the accident trailer and died on the spot. He blamed the trailer.

13. The Appellant did not call any witnesses.

The Appellants’ Submissions 14. It was submitted that the court erred awarding damages for loss of dependency that were excessive and inordinately high and occasioned injustice to the Appellant.

15. Counsel submitted that the trial court awarded damages for loss of dependency without evidence of earning of the deceased.

16. It was further submitted that did not assess the damages based on the evidence presented in Court and comparative cases and arrived at an erroneous estimate thereof.

17. Further, counsel submitted that the Respondent had failed to prove the case on earning as required under Section 107 of the Evidence Act.

18. Reliance was placed on the cases inter alia of Cecilia Mwangi & Another v Ruth Mwangi (1977) eKLR.

19. On loss of pain and suffering, it was submitted that the Deceased died on the same day of the accident and the award under this head of Kshs. 100,000/- by the Trial Court was excessive and punitive.

20. I was urged to allow the Appeal.

The Respondent’s Submissions 21. On the part of the Respondent, it was submitted that the assessment of damages was at the discretion of the court and the award of the sum of Kshs. 1,200,000/= and Kshs. 100,000/= for loss of dependency and pain and suffering was not inordinately high as to be interfered by this Court.

22. Counsel further submitted that the learned trial magistrate was guided by the principles on assessment of damages and awarded commensurate compensation to the estate of the Deceased.

Analysis 23. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

24. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

25. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

26. Similarly, in the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

27. The duty of the first Appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

28. Therefore, this Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the Trial Court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the Lower Court as parties cannot read into those documents matters extrinsic to them.

29. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

30. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. Damages must be commensurate with similar injuries.

31. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages."

32. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.

33. Furthermore, in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

34. There is no dispute that the Deceased was 27 years at the time of his demise.

35. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”

36. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to:-1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high.

37. I have perused the impugned judgment and I note that the trial court adopted a multiplier of 30 years and a multiplicand of 2/3 with income of Kshs. 5,000/-. I have no doubt that the stated Kshs. 5,000/- meant Kshs. 5,000/- per month. The Appellant’s case is that there was no evidence that the Deceased earned the income pleaded. I note Kshs. 5,000/= per day was pleaded as arising from the boda boda work but the court applied Kshs. 5,000/- per month. The Court in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J, as he then was, held at page 248 that:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

38. In my analysis, whereas the Appellant contended that there was no evidence produced in court to show that the Deceased earned income, the Appellant did not contest the fact that the Deceased was a boda boda rider. A boda boda rider had to earn income whatsoever. I consequently find that the award of Kshs. 5,000/- per month when Kshs. 5,000/- per day was pleaded was not excessive and punitive to the Appellant. It may have been low in the circumstances of this case but it was not inordinately low also as the Respondent did not lead contrary evidence or appeal against the award. I will not disturb it.

39. In Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

40. The Deceased was married with a young family comprising a wife of 27 years old and 5 children aged between 3 and 8 years. He also left a mother. I do not think the court applied wrong principles or failed to apply relevant principles in awarding a multiplicand of 2/3 and multiplier of 30 years. The Deceased must have used his income to support his family and mother. It was a reasonable award which I will not disturb. As was held by Odunga J (as he then was) inJ W N v Kassam Hauliers Limited [2020] eKLR:17. Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ratio of 2/3. On the other had they have taken unmarried people to spend more on themselves more than their dependants more so parents hence have apportioned a dependency ratio of 1/3 which has over time been enhanced to 1/2. In this case it was submitted that as the deceased was married with 3 children he spent more on his family than self hence a dependency ratio of 2/3 would suffice.

41. As for the damages for pain and suffering, it was pleaded that the deceased died on the same day and so the trial court’s award of Kshs. 100,000/- was excessive.

42. In Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR it was observed that:“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 award range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

43. Furthermore, in Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) paragraph 21 the Hon. Odunga J (as he then was) observed: -“The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness… a distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.” (emphasis mine).

44. The above case law points to the fact that the ward of pain and suffering depends on whether the deceased died on the spot or after some time. That is, damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted unlike in a case where a deceased die later on. In this case, the deceased passed away on the same day of the accident. there is not evidence that he was taken to any hospital prior to his death.

45. The question therefore is whether the award of Kshs 100,000 was high considering that the deceased died on the same day. I have looked at the case law submitted by both parties. I have also had a look at other cases as highlighted below.

46. In Nairobi HCCC No. 191 of 2013 Francis Wainaina Kirungu (suing as personal representative of the estate of John Karanja Wainaina) Deceased vs. Elijah Oketch Adellah [2015] eKLR, the Court awarded Kshs 50,000/= on 6th February 2015 for pain and suffering where the deceased died shortly after the accident.

47. In Malindi Civil Appeal No. 17 of 2015 & 18 of 2015 - Moses Akumba & another vs. Hellen Karisa Thoya [2017] eKLR the court upheld an award Kshs 50,000/= on 4th October, 2017 and observed that although there was sudden death, it is clear that the deceased must have suffered a lot of pain.

48. Similarly, in Machakos High Court Civil Appeal No 50 of 2016 - Kenya Power and Lighting Co Ltd vs. Sophie Ngele Malemba & Another [2019] eKLR where the deceased who had died on the spot was awarded Kshs 50 000/= for pain and suffering by the Trial Court which award was upheld on appeal.

49. The amount for pain and suffering was adequate in the circumstances. The end result is that I dismiss the Appeal with costs of Kshs. 75,000/=.

Determination 50. In the upshot, I make the following Orders: -i.Costs of Kshs. 75,000/= to the Respondent.

DELIVERED, DATED AND SIGNED AT VIRTUALLY ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Adede for AppelantMiss Mwakizozo for the Respondent