[2014] KEHC 1654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

HCC APPEAL NO. 37 OF 2006

KALENJIN AUTO HARDWARE........................APPLICANT

VERSUS

JOSELINE KATANGA DISHON..................RESPONDENT

J U D G M E N T

This appeal arises from the decision and Judgment of the Senior Principal Magistrate at Kitale in CMCC No. 82 of 2003 in which the appellant Kalenjin Auto Hardware, was sued by the respondent, Joseline Katinga Dishon, being the legal representative of the estate of the late Isaac Kamonye Kipsakei, for damages arising from a road accident which occurred on the 13th September, 2001 involving the deceased and a motor vehicle Registration No. KAJ 699 belonging to the appellant and driven at the time by its servant/agent and/or employee.

It was alleged in the respondent's plaint that on the material date the deceased was lawfully walking along Muroki Kambi Miwa murram road when he was knocked down and fatally injured by the appellant's vehicle which was at the time so negligently driven, managed and/or controlled by the appellant's servant/agent and/or employee. As a result, the respondent and other dependants of the deceased suffered loss and damage. They therefore prayed for damages under the Fatal Accident Act and the Law Reform Act together with special damages and costs of the suit and interest.

The appellant in its statement of defence denied the allegations made by the respondent and in particular its alleged ownership of the material motor vehicle, the alleged occurrence of the accident and the allegations of negligence made against itself.

The appellant contended that if an accident occurred as alleged, that it was wholly and/or substantially contributed to by the negligence of the deceased in the manner in which he rode his pedal cycle.

The appellant therefore prayed for the dismissal of the respondent's case with costs.

During the trial, judgment on liability was by consent of the parties entered in favour of the respondent against the appellant at eighty per cent (80%) with the respondent bearing twenty per cent (20%) of the blame.

This appeal is therefore on quantum of damages alone.

In that regard, written submissions were fled by both parties.

The appellant's contention was that the award for loss of dependency, loss of expectation of life and for pain and suffering made by the learned trial magistrate was excessive, unreasonable and erroneous in the circumstances. That, the adoption of a multiplier of 2/3 instead of 1/3 without giving any reason was an error in both law and fact and that the failure to reduce the award under the Law Reform Act in view of the award given under the Fatal Accidents Act was an error in Law.

The appellant therefore urged this court to allow the appeal and set aside the judgment and decree of the trial court.

The respondent contended that the award made by the learned trial magistrate for loss of dependency was appropriate owing to the fact that the deceased was at the time of his death aged forty two (42) years old and the sole bread winner of his family. That, the multiplicand applied by the trial court was the net pay after deductions and ought not be interfered with, That, dependency was sufficiently established by evidence adduced by the respondent who was wife to the deceased. That, the dependency ratio of 2/3 was a matter of fact and not law and was correctly applied by the trial court. That, the circumstances of this case do not call for interference by this court with the award of damages made by trial court as the same was not excessive.

The respondent therefore urged this court to uphold the findings made by the learned trial magistrate with regard to quantum of damages and dismiss the appeal with costs.

Having considered the grounds of appeal in the light of the submissions by both sides and also having re-considered the evidence adduced at the trial court, this court is minded of the holding by the court of Appeal in the case of Kemfro Africa Ltd T/A Meru Express Services Vs. A. M. Lubia & Another (1982-88)L KAR 727, to the effect that the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded are that the appellate court must be satisfied that either the judge in assessing damages took into account an irrelevant fact on or left out of account a relevant one or that short of this , the amount is inordinately low or so high that it must be a wholly erroneous suitable of damages.

It is apparent on the basis of the foregoing principles that grounds two (2) and three (3) in the memorandum of appeal dated 20th November, 2006 are most relevant for the purposes of this appeal.

With regard to ground two, the appellant contended that the award on loss of dependency was inordinately excessive in that dependency was not established by the respondent as the birth certificates of the alleged five children were not produced neither were their ages stated in the plaint.

The issue was not raised in the appellant's pleadings thereby implying that it was an undisputed fact that the deceased left behind a widow and five children i.e one son and for daughters.

Although the birth certificates for the children were not formally tendered in evidence, the respondent acknowledged in her evidence that they were available. She also clearly stated that at the time of the death of the deceased, the children were aged between seven (7) and sixteen (16) years meaning that they were all minors. No dispute arose with regard to the said children being the children of the deceased and the respondent his wife. It would therefore not be correct to say that dependency was not established by the respondent. On quantum of damages for loss of dependency, the appellant submitted that it was inordinately excessive and relied on the decision in Radhakrishen M. Khenmaney Vs. Mrs Lochaba Murlidhar (1985) EA 268, in contending that the Learned trial magistrate failed to apply the formula suggested in the case by failing to subject the deceased's income to a 45% tax reduction. The appellant opined that the damages for loss of dependency ought to have been a sum of Kshs.207,779/=.

The respondent however, submitted that the award for loss of dependency in the sum of Kshs.861,431/= made by the trial court was appropriate as the deceased was aged 42 years at the time of death and the sole breadwinner of his family and that his monthly net income of Kshs.8,283. 40 was established by necessary pay slip (P. Ex.3).

The respondent relied on the case of Leonard Ekisa & Another Vs. Major K. Birgen (2005)e KLR, and contended that the trial court correctly applied the net pay as entered in the payslips and arrived at a fully taxed multiplicand of Kshs.8,283/=.

Indeed damages for loss of dependency would be based on net income which is gross income less deductions to arrive at a multiplicand. Herein, the pay slip (P. Ex.3) confirmed that the deceased earned a net income of Kshs.8,283. 40 cts per month from his employment as a teacher. Therefore, the trial court applied the correct formula to arrive settle at Kshs.861,432/= loss of dependency.

The amount was neither unreasonable nor excessive in the circumstances.

Consequently, ground two of the appeal is unsustainable.

With regard to ground three, the appellant took issue with the dependency ratio of 2/3rd applied by the trial court for reason that the respondent did not prove that she fully depended on the deceased. However, the evidence availed by the respondent indicated otherwise and was never rebutted by the appellant in any manner. Besides, the extent of dependency is a matter of fact to be determined on a case by case basis, (see, Stella Kanini Jackson Vs. Kenya Power & Lighting Co. Ltd (2012)e KLR and Beatrice W. Thairu Vs. Hon Ezekiel Barngetuny & Another NBI HCCC 1638 of 1988).

Therefore, the dependency ratio applied by the trial court was proper and reasonable in the circumstances. Ground three of the appeal is also unsustainable.

Additional issues raised by the appellant in its submissions related to the award of Kshs.100,000/= for loss of expectation of life. It was the appellant's view that the award was inordinately excessive and ought to have been reduced since an award under the Fatal Accident Act had already been made.

This court does not think that the award made by the trial court for loss of expectation of life was inordinately excessive considering the age of the deceased at the time of death and the fact that he left behind a number of dependents who were entitled to damages not only under the Law Reform Act but also the Fatal Accident Act. Such damages are independent of each other and ought not be taken into account in assessing damages with a view to reducing damages under any one head (see, S. 2(5) of the Law Reform Act (cap 26 LOK).

The other issue raised by the appellant was with regard to the filing of its submissions in the trial court. The appellant thus complained that the trial court erroneously concluded that it had not filed its submissions whereas the opposite was the reality. Ground one of the appeal was essentially based on this issue as the appellant contended that its submissions were ignored by the trial court. However, the original record respecting the court proceedings show that after the parties had entered a consent on liability on the 5th July, 2006, they were given upto 26th July, 2006 to file their respective submissions. It was only the respondent whose submissions had been filed as at 26th July, 2006. It is not therefore known where a copy of the appellant's written submissions contained in the appellant's record of appeal bearing a date stamp of the 14th July, 2006, came from.

What is certain as per the original court record is that the appellant failed to seize the opportunity granted to it by the trial court to file written submissions within the prescribed time. It cannot now be heard to complain that its submissions were ignored by the trial court.

All in all, this appeal is lacking is merit. It must and is hereby dismissed with costs to the respondent.

Ordered accordingly.

J. R. KARANJA

JUDGE

11/11/2014

[Delivered & signed this 11th day of November, 2014].