[2022] KEHC 13643 (KLR)

Kaingu & another v Ndeto & another (Suing as the legal representatives of the Estate of Elizabeth Kanini Ndeto) (Civil Appeal 5 of 2020) [2022] KEHC 13643 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13643 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 5 of 2020

GMA Dulu, J

October 12, 2022

Between

Mtunji Nathaniel Kaingu

1st Appellant

Wilson Kibanoi Mosiria aka Wilson Mosiria Kibanoi

2nd Appellant

and

Alice Muthini Ndeto

1st Respondent

Zipporah Ndinda Ndeto

2nd Respondent

Suing as the legal representatives of the Estate of Elizabeth Kanini Ndeto

(Being an appeal from the original judgment of Hon. C.A Mayamba (P.M) in Kilungu Principal Magistrate’s Court PM Civil Case No.27 of 2019 pronounced on 20th December 2019)

Judgment

1. In a judgment delivered on December 20, 2019, the trial magistrate delivered judgment in favour of the respondents who were the plaintiffs in the trial court and concluded as follows –“I do therefore make the following orders –a.Liability 100%b.Pain & Suffering Kshs.20,000/=c.Loss of Expectation of Life Kshs.100,000/=d.Loss of Dependancy Kshs.1,274,240/=e.Special damages Kshs.26,725/=f.Total sum Kshs.1,394,240g.Plus costs and interests

2. Dissatisfied with the judgment and award of the trial court, the appellants who were the defendants in the trial court, have come to this court on appeal through counsel Kiarie & Kariuki Associates on the following grounds -1. The learned magistrate erred in law and fact by applying the wrong principles in arriving at the award of general damages under the Law Reform and Fatal Accidents Act and thus giving an excessive award of Kshs.1,394,240/= regard being had to the evidence at the trial and submissions, therefore erroneous in that –a.The learned magistrate adopted a high dependency ratio of 2/3 to award damages under loss of dependency to the survivors named in the plaint but who did not prove dependency.b.The learned magistrate applied a multiplier of 22 years which was too high and did not take into account the vagaries of life that would shorten the deceased’s working life.2. That the learned magistrate erred in law in failing to uphold the doctrine of precedent.3. That the learned magistrate misapprehended the facts and submissions presented before him by the plaintiffs and disregarded the defence and submissions of the defendants hence condemning the defendant misheard.4. That the learned trial magistrate erred in law and principle in awarding such an inordinately high award of damages and that the said award can only be adjudged to be an entirely erroneous estimate of the correct damages awarded to the respondents.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by Kiarie Kariuki & Associates for the appellants, and those filed by Kamolo & Associates for the respondent. Both counsel relied on decided court cases.

4. As a first appellate court, I am bound to be guided by the legal principle stated in Selle –vs- Associated Motor Boat Company Ltd (1968) E.A 123, which echoes what was stated in the earlier case of Peter –vs- Sunday Post Ltd (1958) QBD 424 – wherein it was stated that a first appellate court has an obligation to re-appraise and re-evaluate the evidence afresh bearing in mind that it did not have the opportunity of seeing and hearing witnesses testify, and give due allowance to that fact.

5. This appeal also being an appeal challenging the quantum of damages awarded, I am guided by the principle set out in the case of Butt –vs- Khan (1982 – 88) I KLR 1, as well as the case of Kemfro Africa Ltd t/a Meru Express Services(1976) Ltd & Another –vs- AM Lubia & Another (1987) KLR 30 thatan appellate court will not disturb an award of damages unless it is so inordinately high or so inordinately low as to represent an entirely erroneous estimate, and that it must be shown that the Judge (court) 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.

6. During trial, the respondents who were the plaintiffs called one witness Zipporah Ndinda Ndeto who testified that the deceased was a motor cycle passenger when she was hit by the motor vehicle KBL XXXV at Sultan Hamud. It was her evidence that the deceased was 38 years old single mother, who worked for a monthly salary of Kshs.10,000/= and cared for a 6 years old child and the mother Alice Muthini Ndeto.

7. The appellants on their part, called also one witness Wilson Kibanoi Mosiria the 1st defendant, whose evidence was that the accident did occur, and that he was charged with a traffic offence to which he pleaded guilty and was convicted.

8. Both counsel for the parties in the trial court, filed written submissions but I note that the trial court only highlighted the submissions of the appellants’ counsel. For the record, on liability the appellant’s counsel had submitted that the respondents did not prove liability on the balance of probabilities, and asked that the suit be dismissed.

9. With regard to quantum of damages, counsel suggested an award of Kshs.20,000/= for pain and suffering. For loss of life expectancy, counsel suggested Kshs.100,000/=. For loss of dependency/lost years, counsel proposed multiplicand of Kshs.7,240. 95 based on the minimum wages underRegulation of Wages (General Amendment Order, 2018), a multiplier of 10 years, and dependency ratio of 1/3 thus 1/3 x 12 x 10 x 7,240. 95. Counsel also submitted that pleaded special damages were only Ksh.26,725/=.

10. Having considered the submissions of the appellants’ counsel before the trial magistrate as well as the submissions of counsel for the defendant therein, and the evidence on record, I find that the magistrate was correct in finding 100% liability against the respondents. This is because the driver of the motor vehicle pleaded guilty to the charge of causing death by dangerous driving. Secondly, there was no single question put in cross-examination to the witness for the respondent, to suggest any contributory negligence on the side of the deceased herein, or the motor cycle rider.

11. Thus, like the trial magistrate, I find that the appellants were 100% liable in negligence.

12. With regard to the award of damages, the evidence on record was that the deceased died on the day of accident but not instantly. The trial magistrate went by the figure suggested by the appellants’ counsel instead of 200,000/= proposed by respondent’s counsel. The appellants have thus nothing to complain about on this head of award.

13. With regard to loss of expectation of life, again the magistrate awarded a figure of Kshs.100,000/= which was proposed by the appellant’s counsel while the respondents counsel had proposed Kshs.200,000/=. In my view, again the appellants have nothing to complain about.

14. The figure of Kshs.26,725/= for special damages does not appear to be contested by the parties.

15. Thus the only amount in contest is the figure for loss of dependency. On this, the magistrate went by the figure of Kshs.7,240/= per month suggested by the appellant’s counsel. The only difference is that the magistrate applied a multiplier of 22 years against the appellants counsel proposal of 10 years and also a dependency rate of 2/3 instead of dependency rate of 1/3 suggested by counsel.

16. In my view, a multiplier of 22 years for a 38 healthy person is reasonable in the circumstances, and the evidence tendered in this case. In addition, a dependency ratio of 2/3 for a person who was solely taking care of her own child of 6 years and partly taking care of a mother was reasonable. I will thus uphold both the multiplier and the dependency ratio applied by the trial court.

17. Based on my above findings, I find no merits in the appeal, as in my view, the trial magistrate exercised his discretion in assessing damages judicially. He did not misapprehend the facts, nor did he take into account irrelevant factors or fail to take into account relevant facts.

18. I dismiss the appeal with costs to the respondents, payable by the appellants jointly and severally.

DELIVERED, SIGNED & DATED THIS 12THDAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGEMr. Kithuka holding brief for Mr. Kamolo for respondents.No appearance for appellant.