[2017] KEHC 1214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 469 OF 2009

JOSEPHINE NZISA (Suing as the administratrix of

the estate of JULIUS MUSAU MUTUKU (Deceased).....APPELLANT

-V E R S U S –

MICHAEL MUTAHI GITHIGA...............................................RESPONDENT

(Being an appeal from the judgement of Hon. S. A. Okato (Mr) Principal Magistrate delivered on 24th July 2009 in the Chief Magistrate’s Court at Nairobi, Milimani Commercial Court in Civil Suit no. 10487 of 2004)

JUDGEMENT

1. Josephine Nzisa Kimeu, the appellant herein, (suing as an administratrix of the estate of Julius Musau Mutuku (deceased) filed a compensatory suit at the Chief Magistrate’s Court at Nairobi, Milimani Commercial Court against Michael Mutahi Githaiga the respondent herein for the fatal injuries the deceased suffered as a result of a road traffic accident which occurred along Nairobi – Thika road on 9. 2.2003, costs and interest.

2. It is said on the 9th day of February 2003 the deceased was hit by motor vehicle registration no. KAK 386A driven by the respondent herein along Nairobi – Thika Road at Kware stage. As a consequence whereof the deceased sustained severe injuries from which he died on 13/2/2003. The learned trial magistrate S. A. Okato (Mr) entered judgement in favour of the appellant as against the respondent in the sum of ksh.290,565/= jointly and severally which amount is tabulated as follows:

Pain and suffering ksh.150,000/=

Loss of expectation of life ksh.100,000/=

Special damages ksh. 40,565/=

Total Ksh.290,565/=

The learned trial magistrate dismissed the appellant’s claim under the Fatal Accidents Act.

3. Being aggrieved by the award, the appellant preferred this appeal and raised the following grounds of appeal in its memorandum.

1. THAT in reaching the judgement and decree given on 24th July 2009, the lower court made errors of law and fact.

2. THAT the judgment and the decree givn by the lower court on 24th July 2009 failed to consider material evidence adduced by the appellant.

3. THAT the damages assessed for loss of dependency by the lower court was so low as to occasion a miscarriage of justice.

4. THAT in assessing the quantum of damages for loss of dependency, the court shut its mind to documents and evidence adduced before it and which were never challenged by the respondent.

5. THAT in making the assessment of damages for loss of dependency the court failed to take into consideration the relevant principles of law and made both errors of fact and law.

6. THAT in granting such a minimum figure for loss of dependency, the court acted in error of fact and law occasioned an injustice to the appellant.

7. THAT the damages assessed by the lower court for pain and suffering were inordinately low.

4. The aforesaid grounds may be summarised to two main grounds namely:

i. Whether the learned magistrate erred in law and fact in his award on damages for pain and suffering (grounds 3, 4, 5, 6, 7)

ii. Whether the learned magistrate erred in law and fact in dismissing the appellant’s claim under the Fatal Accidents Act (grounds 1, 2)

5. When the appeal came up for hearing, learned counsels appearing in this matter recorded a consent to have the appeal disposed of by written submissions. I have re-evaluated the case that was before the trial court. I have also considered the appellants submissions, the respondent not having filed his submissions.

6. The first ground of appeal is whether or not the learned trial magistrate erred in law and fact on the award he made on damages, for loss of dependency and for pain and suffering.

The appellant submits that the award of damages for pain and suffering of ksh.150,000/= was inordinately low and resulted to an injustice to her.

The appellant in the trial court had prayed to be awarded ksh.300,000 for pain and suffering on the ground that the deceased had been in ICU at Kenyatta Hospital for 4 days before he died.

7. The appellant stated that the proposed amount was a reasonable minimum and the court should have been inclined to award it. The appellant cited the case of William Kinyanjui and another (suing as the legal representatives of the Estate of Jane Florence Njeri Kinyanjui (Deceased) –vs- Benard M. Wanjala and another Civil Appeal no. 98 of 2010 where the court stated inter alia that:

“Damages for pain and suffering are meant to compensate the estate of a deceased person for the pain and suffering the deceased had endured before succumbing to his/her injuries very nominal damages will be awarded under this head if the deceased died immediately after the accident. Damages would however vary depending on the time that lapsed before death occurred. In other words, if the pain and suffering was prolonged before death occurred higher damages would be awarded if death occurred immediately, only nominal damages would be awarded.”

8. After a careful consideration of the appellants’ submissions vis-a- vis the evidence tendered before the trial court, I am convinced that the learned trial magistrate erred and did not appreciate the fact that the deceased suffered great pain before his demise. I am satisfied that the proposal made by the appellant is reasonable. Consequently the ward on pain and suffering of ksh.150,000 is set aside and is substituted with an award of ksh.300,000/=.

9. The second ground of the appeal is whether or not the trial magistrate erred in law and fact in dismissing the appellant’s claim under the Law Reform Act.

10. The appellant submits that the court erroneously failed to consider the evidence adduced by the appellant with the objective of establishing that she was the mother of the deceased. The court proceeded to find that she was not the mother of the deceased.

Upon my re-evaluation of the evidence before the trial court it is apparent that there existed evidence on record to assert this: It was contained in a letter from the District Officer, N. K. Nungulatha, Kathini Division, where the appellant is a resident, in the appellant’s bundle of documents before this court.

Consequently, the trial court erred when it dismissed the claim under the Law Reform Act.

11. In so declaring that the appellant’s claim under the Fatal Accidents Act must fail. The court ended up denying the appellant damages under the Fatal Accident Act on the ground that she was not the mother of the deceased.

12. It’s the appellant’s submission that, courts have approved the multiplicand of 2/3 in scenarios like that of the appellant herein. Even where the earning is not discernible in some circumstances, courts have not dismissed prayer for damages, instead the prevailing minimum wage has been employed to calculate loss of earnings. The appellant relied on the case of Mwita Nyamohanga & another –vs- May Robi Noherai suing on behalf of the estate of Joseph Tagare Mwita (Deceased) and another 2015 Eklr, where the court held that; the trial court erred in law and fact and was blurred by the misguided notion of absence of evidence of parenthood to dismiss the plaintiff’s suit under the Fatal Accidents Act.

The deceased used to earn ksh.7,000/= per month, this is contained in the contract of service dated 13th August 2002 that was entered into between the deceased and the respondent. The deceased died aged 19 years as seen in the death certificate produced before this court. The deceased would have probably worked upto 75 years, as proposed by the appellant, subjected to a 2/3 multiplicand, the final appellant’s proposal would be:

7000X12X56X2/3= Ksh. 3,136,000/=

On my part, I think a fair order would be, an average of a working age of up to 65 years would be appropriate(65-19=46), bearing in mind the uncertainties of life, subjected to a 2/3 multiplicand the damages to be awarded would be:

7000x12x46x2/3= ksh.2,576,000/=

13. The appeal is allowed. The judgment of the trial court is partially set aside and is substituted with the following award.

i. Damages for pain and suffering ksh.300,000/=

ii. Loss of dependency

7000x12x46x2/3 ksh. 2,576,000/=

iii. Loss of expectation of life ksh.100,000/=

iv. Special damages ksh.40,565/=

Total =ksh.3,016,565/=

v. Interest at court rates from the date of judgement until full payment.

vi. The appellant shall have the costs of the appeal

Dated, Signed and Delivered in open court this 6th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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