[2017] KEHC 1111 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HIGH COURT CIVIL APPEAL NO. 119 OF 2017

JOHN WAMAE........................................................1ST APPELLANT

EDWARD KARIUKI.................................................2ND APPELLANT

DAVID KARIUKI KIBUI...........................................3RD APPELLANT

-VERSUS-

JANE KITUKU NZIVA..........................................1ST RESPONDENT

JUSTUS KIOKO KITUKU....................................2ND RESPONDENT JUDGEMENT

BACKGROUND

1. The suit was commenced by Jane Kituku Nziva and Justus Kioko Kitukuwho sued as the legal representatives of the Estate of the deceased namely Elijah Kituku Mulinge who was aged sixty one (61) years at the time of death. The suit arose from a road traffic accident which allegedly occurred on the 14th day of June 2014, along Machakos-Kitui Road. In the plaint, the plaintiffs claimed for damages under the Law Reform Actand also under theFatal Accidents Act.

2. During trial parties recorded consent on liability in the ratio of 80:20 in favor of the plaintiffs and proceeded to asses’ quantum.

3. Judgement was delivered by the trial court on 26th June 2015 and awarded the plaintiff Total Damages of Kshs.1,126,000. 00/=, being Kshs.256,000/= on special damages, Kshs.50,000. 00/= for pain and suffering, Kshs.100,000. 00/= for lost years, Kshs.720,000. 00 for loss of dependency under both the Law Reform Act and the Fatal Accidents Act.

4. The Appellant was dissatisfied with court award on quantum and as such preferred this Appeal. (See page 1-3 of the Record of Appeal.)

5. The Appellant being aggrieved by the aforesaid decision, lodged appeal and set out the following grounds namely:-

i. That the Trial Magistrate erred in fact and in law in awarding manifestly excessive and undeserved general damages to the Respondent under the Fatal Accidents Act of Kshs.720,000/=.

ii. That the Trial Magistrate misdirected herself in both law and fact in using a multiplier of 9 years where the deceased was 61 years with adult dependants who had no special or unique needs.

iii. That the Trial Magistrate erred in law and fact in failing to discount the award un-der the Law Reform Act from the ultimate award thereby making a double award to the Respondent who was both a personal representative of the estate of the deceased and dependant of the deceased.

iv. That the Trial Magistrate erred in Law and fact in law by awarding damages for lost years based on minimum wage instead of a global sum yet the deceased was past the statutory retirement age.

v. That the Trial Magistrate erred in fact and in law in failing to consider the Appellant’s submissions on quantum.

vi. That the Trial Magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

APPELLANT SUBMISSIONS

6. The Appellants submitted that:-the general principle is that the assessment of damages is within the discretion of the trial court and the Appellate court will only interfere where the trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (see Kemfro Africa Limted t/a “Meru Express Services (1976)” & another –vs- Lubia & another (No.2 (1985) eKLR. (See page 22 of the Bundle of Authorities attached hereto).

7. Under the Law Reform act, Chapter 26 Laws of Kenya, the trial court awarded Kshs.100,000. 00/= for Loss of Expectation of Life and Kshs.50,000. 00for Pain and Suffering and same is not contested. However, the Appellants submits that the same should be deducted from the full award of general damages since the beneficiaries under the Fatal Accidents Act and the law Reform Act would ordinarily be the same hence this would amount to double compensation.

8. He relies on the case OFTRANSPARES KENYA LTD & ANOR. –VS- SMM (suing as the Legal Representative for and on behalf of the Estate of EMM (deceased) (2015) eKLR, quoting the decision of the Court of Appeal in KEMFRO –VS- A.M. LUBIA & ANOTHER (11982 – 1988) KAR 727that;

“The net benefit will be inherited by the same Dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the latter Act must be offset by the gain from the estate under the former Act”.

9. The court in the aforesaid case of Transpares (K) Ltdproceeded to hold that the trial magistrate did not consider that the award under loss of expectation of life was to be deducted from the grand total once an award for lost years was made, and therefore erred in this respect when it came to the computation of damages hence deducted Kshs.120,000. 00/= from the total sum of damages. (see pages 1 of the Bundle of Authorities attached hereto)

10. Under theFATAL ACCIDENTS ACT the Appellant’s main contention on the award made under the Fatal Accidents Act is on two(2) fronts namely that the multiplier of 9 years and a multiplicand of Kshs.9, 000/- with a ratio of 2/3 is extremely high and unreasonable for a man who was aged 61 years at the time of death.

11. The reasons given by the magistrate were based on mere speculations. The dependents age was never pleaded contrary to section 8 of the Fatal accidents Act which provides that:-

“….…Plaintiff to deliver full particulars of the persons for whom damages claimed in every action brought by virtue of the provisions of this Act, the Plaintiff on the record shall be required, together with the statement of claim, to deliver to the defendant, or his advocate, full particulars of the person or persons for whom, and on whose behalf, the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered ……...”

12. It is submitted that the claim under the Fatal Accidents Act could not be sustained and the trial court ought to have dismissed the same. Indeed, in the case of APHIA PLUS WESTERN KENYA & ANOTHER –VS- MARY ANYANGO KADENGE & ANOTHER (2015)EKLRthe court dismissed the plaintiffs claim under this head for failure to give full particulars. The court stated that:-

“The mother of the deceased was not pleaded in accordance with the provisions of Section 8 of the Fatal Accidents Act. It must now be clear that the claim under the Fatal Accidents Act could not be sustained”.

13. In view of the above the trial magistrate ought to have made a finding that the claim under the Fatal Accidents Act ought to fail. Therefore the issue of quantum under this head remains only as a matter of academic discourse.

14. On Dependency Period (Multiplier), the Respondents never pleaded the age of the deceased at the time of death however from the death certificate it can safely be said that he was 61 years at the time of death. The Respondent testified that the deceased was entirely responsible for the family provisions and that they had 7children, 3 of them were still pursuing their studies.

15. She further testified that the person who was educating her children was the deceased out of the farm proceeds and out of his salary and as a security guard at Miu Secondary School. However no proof of earnings was adduced.

16. Therefore in light of the age of the deceased and bearing in mind that the deceased had been married to the widow for over thirty years, it is safe to assume that the minors were aged between 14 and 17 years at the time when the deceased died.

17. There is therefore a possibility that the youngest dependent would have been a dependent on the deceased for further 4 years and as such, the Appellant submit that the trial court ought to have used a dependency period of 4 years. See the case of MUTHONI MWANGA –VS- PETERSON WANJOHI & ANOR (2004) EKLR where the court adopted a multiplier of 2 years for a 58 year old deceased who had pleaded three children that were never proved at the hearing. (See page 14 of the Bundle of Authorities attached hereto).

18. OnMultiplicand (earnings)the Respondent testified that the deceased was entirely responsible for family provisions. No evidence was tendered in proof of the deceased earnings and it is submitted that the minimum wage does not apply because the deceased was past the employment age.

19. In view of the foregoing Appellant submission is that for purposes of dependency the trial court ought to have adopted a multiplicand of between Kshs.2000/= – Kshs.3000/=.See the case of BEATRICEW. MURAGE –VS- CONSUMER TRANSPORT LTD & ANOR. (2014) EKLR where the court stated that:-

“Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wage. However, in this case, the minimum wage cannot apply because the deceased was beyond employment age and there is totally no evidence that he earned anything for a living.”

20. The Appellate court in this case agreed with the trial courts findings and found that a multiplicand of Kshs.2, 000/= to be a generous award.

21. On Dependency Ratio, it is submitted thatdependency was never proved though they listed people thought to be dependents. That only the widow and three minors were dependents for purposes of assessment of damages.

22. In view of the above it is submitted that general damages under the head of loss of damages ought to have been assessed as follows: - 3,000 x 4 x 12 x 2/3 = Kshs.96, 000/=. Thus appellant urges court to interfere with the award of Kshs.1,126,000. 00/= as extremely high and erroneous considering the comparable awards for similar claims.

23. The role of the Appellate court has been clearly established and as it was stated by Gikonyo J in the Daniel Mwangi case above citing the decision of the Court of Appeal in BASHIR AHMED BUTT –VS- UWAIS AHMED KHAN (1982 – 88) KAR 5that:-

“An Appellate court will not disturb and award of damages unless it is as inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles of that he misapprehended the evidence in some material aspect and so arrived at figure which was inordinately high or low.”

RESPONDENT SUBMISSIONS

24. The Respondents submitted the following:-on grounds 1 and 2 of the Memorandum of Appeal, the Appellants fault the trial magistrate on her award under the heading of Loss of Dependency, where the learned Trial Magistrate awarded Kshs.720,000/=. The appellants particularly faulted the learned judge for adopting a multiplier of 9 years.

25. In awarding damages, the trial court is exercising discretion. The law is quite clear as to when an appellate court can interfere with the trial court’s exercise of discretion in arriving at quantum of damages. The court of appeal in BUTT –VS- KHAN (1982 – 88) KAR 1 set the parameters 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 arrived at a figure which was either inordinately high or low.”

26. In making the said award, the trial magistrate considered that the deceased aged 61 years old was working both as a farmer and security guard at Miu Secondary School. The deceased therefore earned income both from farming as well as wages from his job as security guard.

27. The magistrate further adopted the government minimum wage of Kshs.9000/= since despite proving the deceased’s sources of income, the respondents did not produce the deceased’s pay slips so as to prove what income he earned. Further, the magistrate adopted a multiplier of nine years considering that there is no retirement age in farming.

28. Further, the magistrate adopted a multiplicand of 2/3 after finding that the deceased left seven children, three of whom were still in school. The court is thus urged to find that the learned trial magistrate exercised her discretion reasonably based on sound fact and law. The magistrate did not misapprehend the law. She based her award on proved facts. See the case of BEN KIPTM EGO–VS- JOSEPH KARANJA (2009) EKLR, where the court while declining to interfere with the trial magistrate’s award of damages stated thus:-

“….. Applying these principles to the award of Kshs.360,000/= made in this case, though I would myself have awarded a slightly lower figure, that, however, is no reason for me to interfere with it. I agree with counsel for the Respondent that the trial magistrate did not misapprehend the evidence or proceed on wrong principles ….”

29. Further, on the issue of proof of income, in SIYARAM ENTERPRISES & ANOTHER –VS- SAMUEL NYACHANI NYACHANI (2015) EKLR the plaintiff did not adduce evidence of earnings, the High Court upheld the decision of the lower court where it had adopted a monthly salary of Kshs.9,000/= and took that amount to be the minimum government wage. The court went further in the above case to say:-

“With regard to the issue of proof of income, a majority of Kenyans are not in formal employment. To have expected the Respondent to produce receipts or pay slips to prove income would have been unreasonable.”

30. Further, the Court of Appeal in the case of JACOB AYIGA MARUJA & ANOTHER –VS- SIMEANE OBAYO, CIVIL APPEAL NO. 107 0F 2002 (2005) EKLR held as follows:-

“We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

31. Lastly, on the question of multiplier, the learned trial magistrate adopted 9 years. That is not inordinately high. The court is urged to uphold the same as reasonable. In SOKORO PLYWOOD LIMITED & ANOTHER –VS- NJENGA WAINAINA (2007) EKLR, the High Court, while sitting on appeal, upheld the decision of the lower court to adopt a multiplier of 10 years in a case where the deceased was 60 years old. The court, while upholding the decision of the trial magistrate stated that:-

“Regarding the multiplier of 10 years, the deceased was 60 years at the time of her death. In the case of Rahab Wanjiku Gitonga –vs- Almas Njoroge Mungai (supra) which was cited by ­ the deceased was aged 64 years and the court adopted a multiplier of 8 years. In the circumstances of this case the multiplier of 10 years was reasonable”

32. On ground 4 of the Memorandum of Appeal, the Appellants alleged that the learned trial magistrate based her award of loss of expectation on minimum wage, rather than a global sum. The Appellants thus fault the learned trial magistrate for the same. The respondent submits that, the same is untrue and is based on misapprehension of the judgment. See page 12 of the judgment (page 61 of the Record of Appeal).

33. The learned trial magistrate awarded a global sum of Kshs.100, 000/=.In making that award, the magistrate considered that prior to his death, the deceased in good health and was actually working both as a farmer and a security guard. There is no mention of minimum wage in making the above award and thus court is urged to uphold the same. The appeal herein is purely on quantum as the parties had agreed on liability in the ratio of 80:20.

34. THE SINGULAR ISSUE IS WHETHER THE AWARD WAS SO INORDINATELY HIGH THAT THE COURT HAS TO DISTURB IT?

35. Grounds 1,2,4,5 and 6 of the appeal can be dealt with together. On the Loss of Dependency, the ratio vide Paragraph 9 of the plaint outlines the people who survived the deceased. It stated that Mutunga Kituku, Mutinda Kituku and Mwikali Kituku were minors.

36. The chief’s letter which was produced as plaintiff’s exhibit 1 indicated that they were minors and gave their ages as 17 years, 15 years and 13 years respectively. Interestingly, the plaintiff (deceased’s wife) while giving evidence in Court said as follows;“the children who are still in school are;

§ Mutunga Kituku - 25 years

§ Mutinda Kituku - 23 years

§ Mwikali Kituku - 21 years

37. The defendant’s counsel seems to have missed the disparity in the years because in their submissions both in the lower Court and in this appeal, they stated that ‘the respective ages of the minors were not disclosed’.

38. In my view, the evidence given by the plaintiff in Court should carry the day. Information about a child’s age is almost always within the mother’s knowledge. The upshot is that all the deceased’s children were adults.

39. The plaintiff testified that three out of the seven children were still in school. One in polytechnic and two in secondary. She also testified that the deceased was responsible for paying their school fees but did not produce anything to show which schools they attended and the amounts which were paid.

40. The conventional age for completion of secondary education in Kenya is 18 years yet all the dependents were above 21 years. Perhaps this would explain the lack of receipts to prove payment of school fees. The evidence on dependency was blurred and I do not think it was safe for the trial Court to adopt a dependency ratio of 2/3.

41. On Multiplicand, Apart from indicating that the deceased was the sole breadwinner for his family, the plaint doesn’t indicate what he did for a living. In her evidence in Court, the plaintiff stated that the deceased was a messenger at Miu Secondary school earning 5,000/= to 7,000/=.

42. In her judgment, the trial Court indicated that the deceased was a security guard at Miu Secondary school and adopted the Government minimum wage of Kshs.9,000/=. The submissions filed by the respondent in this appeal state that “the deceased aged 61 years old was working both as a farmer and security guard.”

43. It is therefore not clear as to what the deceased did for a living. In my view, allocating the deceased an occupation on which to base the minimum wage would amount to speculation. His earnings were neither pleaded nor proved.

44. In BEATRICE .W. MURAGE –VS- CONSUMER TRANSPORT LTD & ANOR (2014) EKLRJustice Wendoh was of the view that;

“Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wage.

However, in this case, the minimum wage cannot apply because the deceased was beyond employment age and there is totally no evidence that he earned anything for a living.”

45. To my mind, this position would apply in clear cases where the occupation of the deceased is not in doubt.

46. It is my view therefore that the learned Magistrate erred by adopting a multiplicand based on minimum wage yet there were contradictions as to what the deceased did for a living.

47. On Multiplier It is not in dispute that the deceased was 61 years at the time of death. The appellants contend that a multiplier of 9 years is too generous. Guided by the following comparable authorities, I am of the view that the multiplier adopted was within an acceptable range.

48. In HARDEV KAUR DHANOA –VS- MULTIPLE HAULIERS (E.A) LTD [2013] EKLR, a multiplier of 6 years was adopted for a deceased who was 62 years.

49. IN MBOI GATHUA KABURO – VS- JOHN WARUTHI MWANGI 1990 (unreported) a multiplier of 6 years was adopted for a deceased who was 63 years.

50. In JOSEPH KAHIGA GATHII & ANOR –VS-WORLD VISION KENYA & OTHERS [2010] EKLR, a multiplier of 8 years was adopted for a deceased who was 57 years.

51. In STEPHEN ONSUMU KIBAGAE –VS-REBEKA MWANGO SIMION & ANOR [2014] EKLR, a multiplier of 9 years was upheld on appeal, for a deceased who was 57 years.

52. In MBOI GATHUA KABURO – VS- JOHN WARUTHI MWANGI 1990- (unreported) a multiplier of 6 years was adopted for a deceased who was 63 years.

53. IN DAVID BORE –VS- JOHNSON MASIKA [1998] EKLR a multiplier of 5 years was adopted for a deceased who was 62 years.

54. Ground 3: whether the trial Court erred by failing to deduct the award under Law Reform Act.

55. Under the Law Reform Act, the trial Court awarded Kshs. 100,000/= for loss of expectation of life and Kshs. 50,000/= for pain & suffering. According to the appellants, the awards are fair. They however contend that these amounts should have been deducted from the full award of general damages since the beneficiaries under the fatal accidents act and Law Reform Act would ordinarily be the same.

56. In KEMFRO AFRICA LTD T/A MERU EXPRESS SERVICES GATHOGO KANINI -VS- A.M. LUBIA C.A. 21 OF 1984 (1882-1988)1 KAR 727 the court stated as follows:-

“…the net benefit will be inherited by the same dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss under the latter Act must be offset by the gain from the estate under the former Act…

This is so despite the provisions of Section 15(5) of the Law Reform (Miscellaneous Provisions) 1934 Act which declares that-‘the right conferred by this Act for the benefit of the estate of deceased persons shall be in addition to and not in delegation of any rights conferred on dependants of the deceased by the Fatal Accidents Act’…anyway, the principle that if a pecuniary gain which accrues to him or her from the same death of a person is logical and appropriate anywhere and in my judgment should be applied in Kenya.”

57. In my view, the requirement in the Law Reform Act is to “take into account” and does not make it mandatory to deduct any sums awarded to the estate of a deceased from damages awarded for lost dependency.

58. This view was buttressed by Justice Mabeya in PERES WAMBUI KINUTHIA AND ANOTHER –VS- S.S. MEHTA & SONS LIMITED, NAIROBI CIVIL APPEAL NO. 568 OF 2010 (UR)where he held that:-

"In the case of Kemfro Africa t/a Meru Express Services (1976) & Anor –vs- Lubia & Anor (No 2) (1987) KLR 30 the Court of Appeal was categorical that the words “to be taken into account” and “to be deducted” are two different things. That the words used in Section 4(2) of the Fatal Accidents Act are “taken into account.” That the Section says what should be taken into account and not necessarily deducted. That it is sufficient if the judgment of the trial court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial court bears in mind or considers what has been awarded under the Law Reform Act for the non-pecuniary loss. There is absolutely no requirement in law or otherwise for the court to engage in a mathematical deduction”

CONCLUSION

59. Due to the inconsistencies highlighted above, I am of the view that this was not a fit case for using the multiplier method of arriving at the damages payable. The trial Court should have awarded a global sum.

60. In MWANZIA -VS- NGALALI MUTUA KENYA BUS LTDand quoted in ALBERT ODAWA -VS- GICHUMU GITHENJI NKU HCCA NO.15 OF 2003 (2007), KLR,Justice Ringera was of the following view;

“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma.

It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

61. This reasoning was adopted in MARY KHAYESI AWALO & ANOTHER -VS- MWILU MALUNGU & ANOTHER ELD HCCC NO. 19 OF 1997 [1999] EKLRwhere Nambuye J., stated that:-

“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”

62. I am of the considered view that the award of the trial Court should be set aside. A lump sum of Kshs. 400,000/= as general damages will be sufficient in the circumstances of this case.

63. The special damages of Kshs. 256,000/= were not contested. The total award should then be subjected to the agreed contributory negligence of 20%.

64. Thus the court makes a total as follows;

i. Award general damages - Kshs. 400,000/-

ii. Special damages ………. - Kshs. 256,000/-

iii. Total……………………….. - Kshs. 656,000/-

iv. Less 20%........................ - Kshs. 131,200/-

v. Balance…………………….. - Kshs. 524,800/-

vi. Plus interest from date of the judgement.

vii. No orders as to costs.

SIGNED, DATED AND DELIVERED THIS 1ST DAY OF NOVEMBER, 2017.

C. KARIUKI

JUDGE

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