[2018] KEHC 6297 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL APPEAL NO. 100 OF 2017

CORAM: D.S. MAJANJA J.

BETWEEN

JOHN MWIKA LIMBERIA suing as the

legal representative of the estate of

STEPHEN KATHURIMA LIBERIA.......APPELLANT

AND

JOSEPH KOBIA KAGWARA...........RESPONDENT

(Being an appeal from the Judgment and Decree of Hon.G. Sogomo, SRM

dated 29th November 2016at the Principal Magistrates Court

at Tigania in Civil Case No. 151 of 2013)

JUDGMENT

1. The deceased, a pedestrian, was knocked down and died in an accident that took place on 11th April 2012 along Ngundune - Ithatene Earth road when the respondent’s driver drove motor vehicle registration number KAH 938P negligently. Following the accident, the deceased’s personal representative claimed damages under the Law Reform Act (Chapter 26 of the Laws of Kenya)andFatal Accidents Act (Chapter 32 of the Laws of Kenya). The issue of liability was settled in the ratio of 70:30 against the respondent. Following assessment of damages, the trial court awarded Kshs. 120,000/- for loss of expectation of life and Kshs. 35,2000/- as special damages. The court did not make any award under the Fatal Accidents Act. It is this award that has now precipitated this appeal.

2. The thrust of the appellant’s case as set out in the memorandum of appeal, written and oral submissions is that the trial magistrate failed to give consideration to the claim for loss of dependency despite the pleadings and evidence supporting such a claim. The respondent’s position is that the trial magistrate appreciated the principles and evidence and was right in making the award.

3. As this is an appeal on the quantum of damages, I must keep in mind the general principal upon which this Court, as an appellate court, will interfere with an award of damages. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5, the Court of Appeal held as follows;

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 at a figure which was either inordinately high or low ….

4. In the plaint, the appellant made a claim under theFatal Accidents Act. According to the particulars, “The deceased was aged 40 years at the time of his death. He was a farmer and businessman earning a sum of Kshs. 50,000/- per month. He took care of his family especially his mother Karimi M’Limberia who solely depended on him.” In his statement, which was relied upon as evidence in chief, the appellant, John Mwika Limberia (PW 1), stated that his late brother was a business man and a farmer and their mother solely depended on him. When cross-examined, he stated that the deceased had a title deed to the land he farmed.

5. In a terse judgment the trial magistrate concluded as follows:

The deceased died at 40 years of age. He appeared not to have had a wife and children at the time since no evidence was adduced and no pleadings were made to that effect. The plaintiff was his elder brother and neither adduced nor pleaded dependency.

There is also no documentary evidence either oral or documentary to show when after the accident the deceased finally gave up the ghost in order to make a determination on pain and suffering.

6. This is a case where the trial magistrate failed to take into account the evidence and pleadings and thus fell into error in failing to award damages. Although the claim was filed by the deceased’s brother as administrator of his estate, particulars of the claim made it very clear that the deceased’s dependant was his mother. The deceased’s mother falls within the purview of dependants under section 4 of the Fatal Accidents Act and an action could be brought for her benefit. In Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 4 Others[1986] KLR 457, the Court of Appeal acknowledged that in Kenya, children, regardless of their age, are expected to provide and indeed do provide for their parents whenever they are in a position to do so to the extent of their abilities.

7. The question then is what level of damages should this court award. Although there was sufficient evidence to prove that the deceased was supporting his mother from his farming and business, it was not clear how much and to what extent he was supporting his mother. I therefore find the multiplier approach unsuitable and I adopt a lumpsum approach. I would award Kshs. 300,000 for loss of dependency on that basis.

8. On the award of pain and suffering, I would only reiterate what I stated in in Sukari Industries Limited v Clyde Machimbo JumaHB HCCA No. 68 of 2015[2016]eKLR that:

[5] On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation.The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death.According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.

9. For the reasons I have stated, I allow the appeal. I award the appellant Kshs. 300,000/- for loss of dependency and Kshs. 20,000/- for pain and suffering. The judgment of the trial court is set aside and substituted with the following award:

Pain and Suffering Kshs. 20,000/-

Loss of expectation of life Kshs. 120,000/-

Loss of dependency Kshs. 300,000/-

Special damages Kshs. 35,200/-

Total Kshs …. 475,000/-

Less 30%

TOTAL Kshs. … 332,575/-

10. The amount shall accrue interest from the date of judgment in the subordinate court. The appellant shall have the costs of the appeal which I assess at Kshs. 30,000/-.

DATEDandDELIVEREDatMERUthis31st day of May 2018.

D.S. MAJANJA

JUDGE

Mr Rimita instructed by Maitai Rimita & Company Advocates for the appellant.

Mr Kariuki instructed by Mithega & Kariuki Advocates for the respondent.