[2022] KEHC 1403 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.658 OF 2016

HILLARY TOM MBOYA.........................................................................................APPELLANT

VERSUS

JANE WANGECHI NJIHIA.........................................................................1ST RESPONDENT

JULIUS MACHARIA WAMUHU

(both suing asthe administrator of the estate of the late

SAMUEL NJIHIA WAMUHU.......................................................................2ND RESPONDENT

(Being an appeal from the judgment/decree of the Honourable Orenge K.I (Mr.)

Senior Resident Magistrate Nairobi deliveredon 29th September 2016

in Nairobi CMCC No.2377 of 2014)

JUDGMENT

1. The respondents filed a suit in the lower court seeking generaldamages under the Law Reform Act and the Fatal Accidents Act (FAA) on behalf of the Estate of Samuel Njihia Wamuhu pursuant to a fatal road accident on 16thMay 2011 along Waiyaki Way. They also prayed for special damages, costs of the suit and interest.

2. The appellant filed his statement of defence denying the entireclaim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondents and assessed damages as follows;

a) Pain and suffering…………………Kshs.50,000/=

b) Loss of dependency……………………..Kshs.1,947,384/=

c) Loss of expectation of life……………….Kshs.70,000/=

d) Special damages………………………….Kshs.30,000/=

e) Total………………………………………….Kshs.2,097,384/=

3. The appellant being aggrieved preferred this appeal and putforward the following grounds:

a) That the learned Magistrate erred in law and fact by failing to take into consideration evidence adduced by the Defendant while considering his judgment.

b) That the learned Magistrate erred in law and fact by failing to take into consideration the award under the Law Reform Act while making the award under the Fatal Accidents Act.

c) That the learned Magistrate erred in law and fact by failing to take into account the principle on double enrichment when arriving at the award.

d) That the learned Magistrate erred in law and fact by failing to find that the deceased had substantially contributed to the accident as a pedestrian.

e) That the learned Magistrate erred in law and fact in awarding a multiplier of 17 years for a 43 year old.

f) That the learned Magistrate erred in law and fact by failing to take into consideration the vicissitudes of life and the nature of work of the deceased whilst awarding the multiplier.

g) That the learned Magistrate erred in law and fact by failing to apportion a dependency ratio when calculating the claim for loss of dependency.

h) That the learned Magistrate erred in law and fact by failing to apportion a dependency ratio of 1/3 where no evidence was adduced that the deceased had a wife or children.

i) That the learned Magistrate erred in law and fact by failing to apply proper legal principles regarding quantum and thus arriving at a bad decision.

j)That the learned Magistrate erred in law and fact in awarding costs to the plaintiff when demand and notice had been denied and not proved in evidence.

4. Directions were given that the appeal be canvassed by way ofwritten submissions. Accordingly, the parties complied and filed their respective submissions.

5. The appellants on the issue of liability submitted PW1, thepurported eye witness, indicated that he did not make a statement, despite the fact that it is standard procedure for an eye witness to register a statement with the police, and the fact that the eye witness in this instance was a friend of the deceased would have given the testimony greater weight.

6. The appellant submits that he objected to the abstract beingproduced in a bundle and demanded that the maker and the investigating officer, if questioned, tell the trial court the date of the accident from the investigation diary and the occurrence book.

7. It is the appellant’s submission that the trial court erred in lawand fact in awarding liability at 100% in favour of the respondents as the evidence before this court paints a picture in which the deceased untimely death was a frolic of his own making of which this appellate court should arrive at a just conclusion that the deceased was wholly to blame for the accident.

8. On this the appellant relied on the case Ann Wangare Mwombe& 2 Others v Peter Mukiri Gateri (2014) eKLR

“where the court in analyzing the issue of pending under investigation was drawn to the conclusion that the same with no statements recorded, exhibits collected, road view or sketch plan or charges preferred against the defendant, the evidence was not instructive of liability”

9. On the issue of quantum, the appellant submitted the trial courtawarded Kshs.50,000/= for pain and suffering, despite the fact that the deceased died quickly and the court did not rely on any authorities or provide any justification for the decision.

10. The appellant submitted that the court should have substitutethe award of Kshs.10,000/= will suffice on pain suffered. They referred to the case ofKenya Railways Corporation v Samuel Mugwe Gioche (2012) eKLRthe trial court awarded Kshs.10,000/= under this head.

11. On the issue of multiplicand, the appellant contends that PW1alleged that the deceased a taxi driver and earned Kshs.15,000/= to Kshs.20,000/= with no documentary evidence ,the trial court went ahead to rely on the minimum wage prescribed for a driver as at 2010 and awarded Kshs.14,319/=.

12. The appellant therefore submits that this appellate court on theaward of earning, should adopt the minimum wage of a general worker (Legal Notice no.98 of 2010) being Kshs.6,743/=.

13. On the issue of multiplier, the appellant proposed a multiplier of10 years for the deceased, who was 43 years, considering the vicissitudes and perils of life although the retirement age is 60.

14. On the issue of dependency ratio, the appellant submitted thathe was purportedly married through customary marriage and had one child before to his death, and he begged this court to adopt a 1/3 ratio. The appellant relied on the caseSukari Industries Limited v John Osodo Osee (suing as the administrators of the estate of Wycliff Ouma Osodo (deceased) (2015)eKLRappellate court in this matter awarded a dependency ratio of 1. 3 as the deceased.

15. It is the appellants submissions that the trial court should haveawarded as follows;

6,743x12x10x1/3=269,720

Pain and suffering…………………………Kshs.10,000/=

Loss of expectation of life………………..Kshs.60,000/=

Total……………………………………………Kshs.339,719/=

16. On special damages, the appellant submitted that plaintiffprayed for funeral expenses of Kshs.20,000/= but no receiptswere produced

17. In response, on the issue of liability the respondents submittedthat their eye witness PW1 stated that the driver of motor vehicle registration number KBD 596D was on the outer lane closest to the stage when he lost control and veered off the road into the area where the deceased and other members of the public were standing.

18. It is the respondent’s evidence that through their eye witness thatthe driver of the said vehicle being DW1 was to blame for driving at a high speed in the circumstances and also for failing to have effective control of the same.

19. The respondents relied on the case of Bashir Ahmed Butt vUwais Ahmed Khan (1982-1988) 1KAR1 and (1981) KLR 349

where it was held as follows:-

“High speed can be prima facie evidence of negligence in some cases………even 15km/hr may not be a safe speed in the early hours of the morning when children go to school along and across a road which known to the driver as in the instance case, serves an area with several schools”

20. The respondents pointed out that the police abstract presentedin court only confirmed that the deceased and the said motor vehicle were involved in an accident on May 16, 2011, a fact acknowledged by the appellant, and that the said police abstract did not assign blame to either party, so its production was not prejudicial to the appellant.

21. On the issue of quantum, the respondents submitted that, thedeceased was a 43-year-old man who was married to one Jane Wangechi Njihia under Kikuyu Customary Laws and had a child named Samuel Wamuhu Njihia, who was ten years old at the time of the deceased's death.

22. The respondents contend that they produced a letter from theassistant chief Gachoho Sub location as an exhibit to support his evidence that the deceased was married, stating that the deceased was married to the 1st respondent, that customary marriage is recognized by law, and that the production of the said letter by the area chief was sufficient proof that the deceased was married at the time of his death.

23. The respondents pointed out that they had produced a pay slip

to support its evidence that the deceased was earning Kshs.15,000/= per month, the court opted to apply the minimum wages applicable at the time for the driver and that is how it arrived at Kshs.14,319/=

24. On this the respondents relied on the case of Mugambi andSilas v Isaiah Gitiru Civil Appeal No.130 of 2002.

“it is settled law that an appellate court will not interfere with an award of damages by the lower court unless it is satisfied that the lower court acted on wrong principals of law or made an award of damages which is inordinately high or low as to represent a wholly erroneous estimate of damages, ”

25. The respondents submitted that the lower court adopted amultiplier of 17 years which would have been the number of years the deceased would have worked to attain the statutory retirement age. On this the respondent relied on the case ofStella Kwamboka v Hussein Dairy and Others Kisii Civil Appeal No.57 of 2009. Justice Asille Makhandia took into amount the minimum statutory retirement age while compacting the multiplier.

26. This is a first appeal and this court has a duty to re-examine andre-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that.

27. I have considered the contending submissions and authoritiescited on appeal. I have likewise re-evaluated the material placed before the trial court. I find two issues falling for determination namely;

i.Whether the appellants were 100% liable for the accident.

ii. Whether the award of damages was excessive as claimed.

28. On the first issue, the judgment delivered on 28th September2016 the trial court found the appellant herein to be 100% liable for the accident. PW1 testified that the defendant's car veered off the road and collided with the plaintiff, and that he was speeding at the time, making him unable to manage the vehicle and prevent causing the accident.

29. PW1 stated that had the appellant been doing reasonable speedhe could not have caused death.

30. It is also clear from the record that after the accident theappellant did not stop at the scene to accord the police an opportunity to investigate and establish who was to blame for the accident but instead he drove off.

31. I am entitled to infer that the appellant ran away from the sceneof the accident because he was on the wrong, this is because if he had nothing to hide he should have stuck around to allow the police to conduct the investigations to establish who was on the wrong. Further, the fact that the river was driving at a very high speed somewhere close to a stage it shows that he was careless as he clearly knows that there is human traffic in stages hence he should have reduced his speed at that. I therefore find the appellant 100% liable.

32. I now move to the second issue which is on the award of damages.Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate court interfere with that discretion are well established. InButt –vs Khan (1977)1KAR

33. The trial court awarded Kshs. 100,000/= for Loss of Expectationof Life and Kshs. 50,000/=for Pain suffering both under the Law Reform Act. It was pleaded that the deceased died on the spot. The evidence of PW1 was that he was with the deceased on the fateful day and that he went through immense pain and suffering between the time of the accident and his death.

34. In my view the award of Kshs. 50,000/= for pain and suffering isnot manifestly excessive in the instant case and is in line withawards given in similar cases.

35. The trial court awarded Kshs. 100,000/= for loss of expectation of life. In the case of Mercy Muriuki & Another –Vs- SamuelMwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLRthe Court 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 awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

In my view the award of Kshs.100,000/= to be adequate

36. The deceased was a 43-year-old driver with a monthly salary ofKshs.15,000/=. He was married with a ten-year-old child. That the trial magistrate used a multiplicand of Kshs.14, 319/=, which was the driver's minimum wage pay at the time. The court also used a dependency ratio of 2/3 and a multiplier of 17 years.

37. On the other hand the appellant submitted that a multiplier of10 years would have been reasonable as well as dependency ratio of 1/3 reason being that the deceased did not have any children and that there was no documentary evidence the deceased was married by way of marriage certificate.

38. I have keenly looked at the arguments for and against the use ofmultiplier and the superior court have been split on the appropriateness of the multiplier approach in such cases and as such the lower court cannot be faulted for choosing on over the other. In the case ofCrown Bus Services Ltd & 2 Others v Jamila Nyongesa and Amida Nyongesa (Legal Representative of Alvin Nanjala (deceased) (2020) eKLRwhere the court stated thus: -

“In this case in the absence of any debilitating health concerns the court shall make only a small reduction of four (4) years on the public sector retirement age of 60 so that the multiplier of 35 years is used in the computation. The court notes that in one decision relied on by the appellant herself, namely West Kenya Sugar Co. Ltd v. Falantina Adungosi Odionyi (Suing as the legal representative of Patrick Igwala Odionyi-deceased) [2020] eKLR, a multiplier of 33 were used for a deceased aged 21 years as in the present case. The deceased herein working in the private sector may well have worked beyond the retirement age of 60. ”

39. Accordingly, I find no basis to interfere with the trialMagistrate’s discretion of using the multiplier approach and assessing the loss of dependency at Kshs.1,947,384/=.The minimum wage of Kshs.14,319/= was as per the basic minimum wage for a driver at that time. The multiplier of 17 years and the dependency ratio of 2/3 are reasonable in my view.

40. In the end the appeal is found to be without merit. It isdismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MARCH, 2022.

.........................

J. K. SERGON

JUDGE

In the presence of:

........................................for the Appellant

.....................................for the Respondent