[2018] KEHC 9425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL DIVISION

HIGH COURT CIVIL APPEAL CASE NO. 34 OF 2014

JOHN GIKUNDI KUBAI........................APPELLANT

VERSUS

SHADRACK KABIRA PETER...........RESPONDENT

(Being an appeal from the Judgment delivered on 10th September, 2014 by Hon. C. M. Maundu (Senior Principal Magistrate) Chief Magistrate’s Court at Maua in CMCC No. 25 of 2013).

JUDGMENT

1. The deceased Sarah Kanyenye M’Kabira died in a Road Traffic Accident on 19th June, 2012. During the hearing of the case, the parties recorded a consent on liability at 10% against the Respondent and 90% against the Appellant. The suit proceeded for assessment of damages.

2. The Respondents witness, PW1 Shadrack Kabira Peter gave the age of the deceased as 60 years. He further stated that the deceased was in hospital for about four hours before she succumbed to the injuries. That the deceased was a farmer and used to sell “miraa” and milk and was also a business lady. That the deceased had five adult children and two grandchildren. That the deceased had dependents and was the one who had custody of the two grandchildren. The monthly earnings of the deceased were given at an average of Ksh.100,000/=.

3. The trial magistrate entered judgment for the Appellant against the Respondent as follows:

a) Pain and suffering Ksh.50,000/=

b) Loss of expectation of life Ksh.100,000/=

c) Loss of dependency Ksh.1,200,000/=

d) Special damages Ksh.74,715/=

Total Ksh.1,424,715/=

4. The trial magistrate then deducted the sum of Ksh.100,000/= award for loss of expectation of life from the aforestated amount and reflected that the estate of the deceased was comprised of the same persons. The judgment entered was for Ksh.1,324,714/= less 10% contribution.

5. The Appellant was dissatisfied with the said judgment and appealed to this court on the following grounds:

a) That the judgment was against the weight of the evidence and the submissions made.

b) That there was no evidence in support of the award made under the Law Reform Act Cap 26 Laws of Kenya and under the Fatal Accidents Act Cap 32 laws of Kenya.

c) That the awards made were excessive and inordinately high.

d) That the trial magistrate adopted the wrong multiplier, multiplicand and dependency ratio.

e) That the trial magistrate erred in making awards both under the law Reform Act cap 26 Laws of Kenya and the Fatal Accidents Act.

6. The appeal was canvassed by way of written submissions which I have considered.

7. 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. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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 this 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

8. The consent on liability was recorded on 23rd April, 2014. The issue of liability was settled as 90:10% in the favour of the Respondent.

9. The deceased died after about four hours following the accident according to the evidence of PW1. However, PW1 produced treatment notes from PCEA Chogoria Hospital which show that the deceased was pronounced dead at 8. 15 on 19th June, 2012 while undergoing treatment. The accident is reflected in the postmortem report produced as having occurred at about 6. 00 a.m. on 19th June, 2012. This brings the time of death at about two hours and fifteen minutes after the accident. The medical records aforestated established that the deceased was semi-conscious, had respiratory distress and was put on an oxygen mask. Thus the deceased endured some suffering before death. The amount of Ksh. 50,000/= awarded by the trial magistrate is reasonable.

10. The award of Ksh.100,000/= for loss of expectation of life is reasonable and within the range of similar awards.

11. On dependency, the Court Appeal expressed itself in the case of Hellen Waruguru Waweru (suing as the Legal representative of Peter Waweru Mwenja (deceased) v Kiarie shoe Stores Ltd & 2 others [2015] eKLR as follows:

“The court should find the age and expectation of working life of the deceased and consider the ages and expectations of life of his dependents, the net earning power of the deceased (i.e. his income less tax) and the proportion of his net income which he would have made available for his dependents. From this it should be possible to arrive at the annual value of dependency which must then be capitalized by multiplying by a figure representing so many years of purchase. As emphasized above, the net income determines the multiplicand and it is only net of statutory deductions”

12. The plaint reflects that dependents of the deceased as the children and grandchildren. This is supported by the letter from the chief which was produced as an exhibit. The evidence of PW1 was not controverted by any other evidence on who the dependents of the deceased were. It is evident that the deceased left behind a family that was dependent on her at the time of death. The trial magistrate therefore correctly applied a dependency ratio of 2/3.

14. The Ksh.100,000/- stated as monthly earnings of the deceased is not supported by any cogent evidence. The bank statement produced by the Respondents does not reflect any regular form of earnings. At an average the same falls far below Ksh.100,000/=. It does not come out from the trial magistrate’s judgment how the figure of Ksh.15,000/= per month was arrived at. I would give a round figure of Ksh.5000/= as per the minimum labour wages Regulations 2012 for general worker.

15. The multiplier of 10 years is reasonable and within the range of similar awards.

16. From the foregoing, the total award is as follows:

a) Pain and suffering Ksh. 50,000/=

b) Loss of expectation of life Ksh.100,000/=

c) Loss of dependency Ksh.400,000/=

(Ksh.5,000 x 12 x 19 x 2/3)

d) Special damages Ksh.74,715/=

Total Ksh.624,715/=

Less contribution 10% Ksh.62,000/=

Ksh.562,244/=

17. In the upshot the Lower Court judgment is set aside and substituted with a judgment for the sum of Ksh.562,244/= interest and costs in the Lower Court. The appeal having been partially successful, each party shall bear own costs.

B. THURANIRA JADEN

JUDGE

Dated, signed and delivered in Meru this 30th day of July, 2018

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

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