[2017] KEHC 8194 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CIVIL APPEAL NO. 2 OF 2015

GEORGE NJENGA …………………………….…………..... 1ST APPELLANT

SOLOMON WAMAE ………………………………………… 2ND APPELLANT

Versus

DANIEL WACHIRA MWANGI

NAOMI NYARUAI WACHIRA(Suing as legal representatives of

WINFREY WANJIKU(DECEASED)…………………...…… RESPONDENTS

(being an appeal from the decision and judgment in the Chief Magistrate’s Civil Case No. 24 of 2014 delivered by T. Matheka, Chief Magistrate on 5th August, 2015 in Nanyuki CMCC No. 89 of 2014)

JUDGMENT

1. DANIEL WACHIRA and NAOMI NYARUAI WACHIRA sued on behalf of the estate of their deceased daughter, Winfred Wanjiku (deceased). They sued George Njenga and Solomon Wamae for special and general damages resulting from an accident which occurred when George Njenga whilst driving a lorry registration No. KBN 436 L collided with a motor cycle registration No. KMCY 810 G. The deceased was traveling on the motor cycle as a pillion passenger. The trial court, by its judgment awarded the deceased’s estate Kshs.800,000 for lost years. It is that award that has provoked this appeal by George Njenga and Solomon Wamae.

2. Appellants by their written submissions before this court conceded that although they raised 6 grounds of appeal the only issue those grounds raise is the appellant’s contention that the trial court’s award of Kshs.800,000 for deceased’s lost years was excessive and erroneous.

3. The deceased was 4 years 9 months at the date of her death. Before her death she attended pre-school at Oasis Education Centre. The school reports, submitted in evidence, portrayed a bright young child.

4. By this appeal this court is called upon to interfere with the trial court’s award in general damages. I wish to refer to the case Bayusuf Freighters Limited V Patrick Mbatha Kyengo (2014) eKLR where the Court of Appeal considered the parameters within which an appellant should consider an appeal against an award in general damages. It stated thus:-

“There is no dispute in respect of liability and the only issue in contention is quantum. This court in GEORGE KIRIANKI LAICHENA VS MICHAEL MUTWIRI – CIVIL APPEAL NO. 162 OF 2011 expressed itself as follows:-

‘It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interest for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H. WEST & SON LTD – VS SHEPHARD (1964) AC 326 at page 353:-

“The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of, his own assessment.’

However there are clear principles which have been decanted overtime and will guide us in considering this appeal. In BUTT –VS- KHAN (1981) KLR 349, Law J.A. at page 356 held:-

“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 he misapprehended the evidence in some material respect, and so arrived as figure which was either inordinately high or low.’

5. The appellants proposed an award of Kshs.150,000 in general damages was adequate. In making that proposal reliance was placed on the cases JGW &EWW vs James Murithi Murunga (2014) eKLR were an award was made for Kshs.160,000 for a child who was 15 years at the date of his death; Nakuru HCCC No. 437 of 1996 Jackson Magata Kiru Vs Charles Cheruiyot Keter, where the award was made for Kshs. 160,00 for a 17 year old child.

6. In this court’s view, and bearing in mind the parameters within which an appellant court can consider an appeal on general damages, I find that, the trial court’s award of Kshs.800,000 in general damages does not warrant interference from this court. The Court of Appeal in the case KENYA BREWERIES –V- SARO (1991) eKLR found that an award can be made for the death of a child. The court stated:-

“In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is no evidence of pecuniary contribution.”

The Court of Appeal in that case proceeded to uphold an award in general damage of Kshs.100,000 made in 1990. We are now in the year 2017, 27 years after that decision. It follows that bearing in mind the passage of time and rising inflation, an award of Kshs.800,00 by the trial court is not excessive nor was it as a result of the application of wrong principles by the trial court.

7. It follows that the appellant’s appeal is dismissed with costs to the respondents.

DATED AND DELIVERED THIS 2ND DAY OF FEBRUARY 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: …………………………………….

For Appellants: ……………………………….

For Respondents: ……………………………….

COURT

Judgment read in open court.

MARY KASANGO

JUDGE