[2023] KEHC 24788 (KLR)

Godana General Trading Company Ltd & another v Kirika & another (Suing on their Own Behalf and as the Administrators of the Estate of the Late Samuel Njuguna Kamau) (Civil Appeal E054 of 2022) [2023] KEHC 24788 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24788 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E054 of 2022

GMA Dulu, J

November 2, 2023

Between

Godana General Trading Company Ltd

1st Appellant

Idriss Mohamed Olat

2nd Appellant

and

Mary Wangeci Kirika & Francis Mueni Mutua alias Fransica Mueni Mutua (Suing on their Own Behalf and as the Administrators of the Estate of the Late Samuel Njuguna Kamau)

Respondent

(From the judgment delivered by Hon. T. N. Sinkiyian (SRM) at Voi Law Court on 24th October 2022 in Civil Case No. E181 of 2021)

Judgment

1. In a judgment delivered on 24th October 2022 the trial Magistrate entered judgment at 80% liability in favour of the plaintiffs (now respondents), and awarded damages for loss of expectation of life, pain and suffering, loss of dependency, and special damages amounting overall Kshs. 2,170,224/= together with costs and interest.

2. Dissatisfied with the decision of the trial court, the appellants who were the defendants in the trial court, have come to this court on appeal through Counsel Tsofwa Mweni Advocates on the following grounds:1. The learned Magistrate erred in law in finding that the plaintiffs had proved the deceased monthly income.2. The learned Magistrate erred in law in finding that the deceased monthly income was Kshs. 30,000/=.3. The learned Magistrate misapprehended the principles on arriving at the deceased’s income.4. The learned Magistrate erred in law in finding that a multiplier of ten (10) was appropriate in the case.5. The learned Magistrate awarded an excessive sum in the circumstances of the case.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellants” counsel Tsofwa Mweni Advcoate, as well as the submissions filed by S. N. Ngare & Company Advocates for the respondents.

4. This appeal is on the quantum of damages awarded as liability is not contested. Being an appeal on quantum of damages, I have to be guided by the principle consistently applied by courts and as restated in the case of Kenfro Africa Ltd & Another =Versus=Lubia & Another (1982 – 88) KLR, wherein it was stated as follows:-“In deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge, an appellate court must be satisfied that the Judge in assessing damages took into account an irrelevant factor, 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 the damage.”

5. In the present case, the plaintiff (now respondent) called one witness at the trial, PW1 Mary Wangeci who adopted the witness statement and was cross-examined and re-examined.

6. She stated that the deceased was a boda boda (motor cycle) operator as well as owner of same. That he earned Kshs. 30,000/= per month. She did not bring to court any documentary proof on that. She stated that she was first wife, and that three children were minors at 15, 13 and 5 years, and that the deceased was 61 years old, and died on the spot.

7. In re-examination, she stated that all the children who were above 18 years, were Standard 8 drop-outs.

8. The respondent did not tender any evidence, and instead parties counsel filed written submissions and the Magistrate delivered the judgment which is presently in contest on appeal on the quantum of damages, as liability was recorded in court by consent of the parties at 80%:20%.

9. It is important to note here that the only head of damages in contest herein, from the grounds of appeal, is on loss of dependency under the Fatal Accidents Act using the multiplicand Kshs. 30,000/= per month and the multiplier of 10 years.

10. Having considered the evidence on record, and the submissions of counsel on both sides, I am of the view that the trial court erred in using the multiplicand of Kshs. 30,000/= per month as no evidence to support the boda boda business, nor even the ownership of the motor cycle, was tendered in court.

11. In that event therefore, in my view, the trial court should have been guided by the minimum wage or a figure just above the minimum wage. In my view in the present case, a multiplicand of Kshs. 10,000/= which would be slightly above the minimum wage would be a reasonable multiplicand.

12. With regard to the multiplier of 10 years, for a healthy man of 61 years who was active and fending for his polygamous family, in my view a multiplier of 10 years which would mean a working life up to 71 years would be reasonable, as the deceased was self employed.

13. I will thus allow the appeal in part, and order that the damages will now be as follows:-i.Pain and suffering Kshs. 50,000/=ii.Loss of life expectancy Kshs. 100,000/=iii.Loss of dependency10,000x10x12x1/3 Kshs. 800,000/=iv.Loss of consortium Kshs. 100,000/=v.Special damages Kshs. 50,224/=80% payable Kshs.880,179/=

14. The other orders of the trial court on costs and interest apply, except that for the appeal the parties will bear their respective costs of appeal.

DATED, SIGNED AND DELIVERED THIS 2ND DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT VIRTUALLY.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Tsofwa for appellant