[2023] KEHC 18914 (KLR)

Halake v PK alias PK(Suing as the Administrator of the Estate of BGM - Deceased) (Suing as the administrator of the estate of BGM (Deceased)) (Civil Appeal E147 of 2021) [2023] KEHC 18914 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 18914 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E147 of 2021

EM Muriithi, J

June 22, 2023

Between

Adan Huka Halake

Appellant

and

PK alias PK(Suing as the Administrator of the Estate of BGM - Deceased)

Respondent

Suing as the administrator of the estate of BGM (Deceased)

(An appeal from the Judgment of Hon. C.K Obara (S.P.M) in Maua CMCC No. E042 of 2020 delivered on 27/9/2021)

Judgment

1. By a plaint dated December 11, 2020, the respondent sued the appellant seeking general damages under the Fatal Accidents Act and Law Reform Act, special damages of Kshs 110, 875 as pleaded together with costs and interest. The respondent pleaded that on or about October 11, 2018, the deceased was lawfully walking on the verge of the road (the pedestrian path) along Kiutene - Kina Road, on her way home from school, when the appellant and/or a person working under his instructions so negligently drove, managed and/or controlled motor vehicle registration No KCC 387 C Isuzu Lorry thereby causing it to hit and/or crash the deceased thereby occasioning her serious injuries which led to her death. At the time of her death, the deceased was aged 9 years, enjoying good health and living a happy and vigorous life. The deceased was a bright PP2 pupil whose parents believed would complete her studies, get employed and support them in their old age. As a result of the accident, the respondent has suffered and continues to suffer immense loss and damage.

2. The appellant denied the claim by his statement of defence dated January 15, 2021 and prayed for the respondent’s suit to be dismissed.

3. The parties recorded a consent judgment on liability at the ratio of 90:10 in favour of the respondent against the appellant and upon full hearing on quantum, the trial court awarded general damages for pain and suffering of Kshs 50,000, Kshs 100,000 for loss of expectation of life, Kshs 1,400,000 for loss of dependency and special damages of Kshs 110,925 less 10% contribution = Kshs 1,494,832 together with costs and interest.

The Appeal 4. On appeal, the appellant filed his memorandum of appeal on October 25, 2021 listing 8 grounds as follows:1. The learned trial magistrate erred in law and fact in relying on the wrong principles in making an award of Kshs 1,400,000/= for loss of dependency.

2. The learned trial magistrate erred in law and fact in failing to the facts of the respondent’s case which were in support of a global sum award only.

3. The learned trial magistrate erred in law and fact in awarding the respondent Kshs 110,925/= despite the fact that the same had not been specifically proved.

4. The learned trial magistrate erred in law and fact by awarding inordinately high general damages to the respondent.

5. The learned trial court erred in law and fact in awarding the respondent both damages for loss of expectation of life and for pain and suffering.

6. The learned trial magistrate erred in law and fact by failing to consider the appellant’s submissions and authorities on quantum hence arriving at an erroneous decision.

7. The learned trial magistrate erred in law and fact in awarding damages that were inordinately high to constitute a miscarriage of justice in the circumstances of the case.

8. The learned trial magistrate’s judgment on quantum was wholly not supported in law by evidence tendered in court by the parties.

Duty Of The Court 5. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co & others [1968] EA 123).

The Evidence 6. PW1 PK, the respondent herein, adopted her statement dated December 11, 2020 as her evidence in chief and produced the police abstract, death certificate, school letter dated July 10, 2019, post mortem report, motor vehicle search records, demand notice, copy of chief’s letter, copy of grant of letters of administration, receipt for demand notice, receipt for funeral expenses, receipt for motor vehicle search and G4S receipt as exhibits in court.

7. The witness was not cross examined.

Submissions 8. The appellant submits that the trial court’s award was erroneous and inordinately high, and urges the court to interfere with it as pronounced in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates (2013) eKLR and Butt v Khan (1978) eKLR. He prays for the damages for pain and suffering and loss of dependency to be substituted with Kshs 10,000 and Kshs 600,000 respectively. He objects to the award of special damages as the receipts which were produced were ineligible hence cannot be verified or awarded, and cites David Bagine v Martin Bundi (1997) eKLR and Leonard Nyongesa v Derrick Ngula Righa (2013) eKLR. He urges the court disallow interest on general damages and to allow the appeal with costs.

9. The respondent submits that her evidence was not shaken or impeached in any way because she was not cross examined, and the appellant’s defence remained bare averments which were not proved. She urges that the issue of double compensation was settled by the Court of Appeal in Hellen Wanguru Waweru (Suing as the legal representative of Peter Waweru Mwenga (deceased) v Kiarie Shoes Stores Limited (2015) eKLR. She urges that the awards for pain and suffering and loss of dependency cannot be said to be ridiculously high to warrant interference, and cites Twokay Chemicals Limited v Patrick Makau Mutisya & another (2019) eKLR, DMM (suing as the administrator and legal representative of the estate of LKM v Stephen Johana Njue &another(2016) eKLR and Mpaka Muriuki Japheth v HMM & another(2021) eKLR. She applauds the trial court for analysing the respective parties’ submissions in arriving at the decision it did. She urges that the receipts for special damages were produced without any objection from the Appellant, and the obligation to affix revenue stamps is on the receiver and not the payee, as was held in Paul Guyo Waqoh v Hussein Abdi Huka & another (2019) eKLR. She urges the court to let the trial court’s decision stand and dismiss the appeal with costs.

Analysis and Determination 10. The appellant faults the trial court for awarding damages for pain and suffering and loss of expectation of life. These damages are both awardable under the Law Reform Act, and therefore that fault by the appellant is manifestly unfounded.

11. After considering the grounds of appeal raised by the appellant, the issues for determination are whether the awards made by the trial court under the various heads were inordinately high; whether the appellant’s submissions and authorities were considered.

Inordinately High Damages 12. The principles on when an appellate court would interfere with the findings of fact by the trial court on quantum are now trite as settled by the Court of Appeal in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 andKitavi v Coast Bottlers Limited [1985]KLR 470).”

Pain and Suffering 13. The evidence on record is that the deceased was coming home from school when she was knocked down by the accident motor vehicle which crushed her. Although she died on the spot, the trial court was of the view that she underwent excruciating pain since she was crushed. The cause of death is indicated in the certificate of death as cardio pulmonary arrest, due to crushed injury of head, chest and abdomen due to road traffic accident. This court finds that the sum of Kshs 50,000 for pain and suffering awarded by the trial court was justified, taking into account the agonizing pain the deceased underwent before she died.

Loss Of Expectation Of Life 14. It is settled that the conventional figure awardable under this head is Kshs 100,000, which is what the trial court awarded.

Loss Of Dependency 15. Dependency is a matter of fact and must be proved by evidence. PW1 produced a letter from the chief showing that she was indeed the mother to the deceased. In her statement recorded on December 11, 2020, she stated that, “The minor enjoyed good health and lived a happy and vigorous life. She was a bright student and we hoped she would support us (the parents) in our old age. As a result of the said accident, I have suffered, and continue to suffer immense loss and damages.” That evidence was not subjected to any cross examination whatsoever, and therefore it remained unchallenged. The appellant did not offer any evidence in rebuttal and/or in support of his defence, and thus this court finds that the respondent proved on a balance of probabilities that the deceased, aged only 9 years was a bright PP2 pupil whose future was undeniably bright.

16. In awarding a global sum of Kshs 1,400,000 for loss of dependency, the trial court relied on varied decisions where the amount awarded under this head ranged from Kshs 500,000 – Kshs 1,000,000 for deceased minors aged between 5 years – 17 years. This court therefore finds that the award of Kshs 1,400,000 for a school going minor aged only 9 years, who was in good health and whose parents reasonably expected would support them in their old age, was justified in the circumstances and consistent with past awards. For instance, in China National Aero-Technology International Engineering Corporation v RL (Suing as the legal representatives of the estate of the late SL(2020) eKLR, the court (R.P.V Wendoh J) declined to interfere with the trial court’s award of Kshs 1,400,000 for loss of dependency of a deceased who was aged 13 years.

Special Damages 17. PW1 recorded in her statement that, “additionally, I have suffered the expenses shown in the plaint and evidenced by the receipts.” She produced a receipt from Nyambene District Hospital for Kshs 100,000, a receipt from Ngunjiri Michael & Co Advocates for Kshs 10,000, receipt for motor vehicle search for Kshs 550 and a receipt from G4S for Kshs 375 totalling to Kshs 110,925, which is what was awarded by the trial court.

Consideration Of The Appellant’s Submissions And Authorities 18. The appellant alleges that the trial court totally disregarded his submissions and authorities. On the contrary, this court finds that the trial court properly analyzed both sets of submissions and authorities before reaching the decision it did.

Orders 19. Accordingly, for the reasons set out above, the court finds that the appeal is without merit and it is dismissed.

20. The respondent shall have costs of the appeal.

21Order accordingly.

DATED AND DELIVERED THIS 22ND DAY OF JUNE, 2023. EDWARD M. MURIITHIJUDGEAppearances:M/S Ngunjiri Michael & & Co Advocates for Appellant.M/S Kiruki & Kayika Advocates for the Respondent.