[2023] KEHC 26922 (KLR)

Karuri & another (Suing through the legal representatives of the Estate of David Mburu Karuri (Deceased)) v Njoroge (Civil Appeal 14 of 2019) [2023] KEHC 26922 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26922 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 14 of 2019

FROO Olel, J

December 14, 2023

Between

Stephen Waweru Karuri

1st Appellant

Alice Wambui Kariuki

2nd Appellant

Suing through the legal representatives of the Estate of David Mburu Karuri (Deceased)

and

Ann Muthoni Njoroge

Respondent

(BEING AN APPEAL FROM THE JUDGMENT OF HON C. C. OLUOCH (S.P.M) DELIVERED ON 25TH JANUARY 2019 IN MAVOKO CMCC NO. 160 OF 2018)

Judgment

Introduction 1. This appeal arises from the judgement/decision of Hon. C.C. Oluoch (S.P.M.) dated 25th January 2019 and issued in Mavoko CMCC No. 160 of 2018, where she did enter judgement in favour of appellants and awarded them damages totaling to Kshs. 1,914,410/= less 20% contribution reducing the total award to Kshs. 1,531,528/=. It should be noted That on 30th October 2019, the parties herein did file a written consent on liability in the ratio of 80:20% in favour of the appellants and further agreed to file written submissions on Quantum.

Pleadings 2. The appellants had filed a suit as the Legal Representatives for the Estate of David Mburu Karuri (Deceased) who on 10th February, 2017 was hit by the Respondent’s motor vehicle KCJ 268D make FAW Lorry (truck) hereinafter referred to as the (suit motor vehicle) while crossing Mombasa road and as a result he sustained fatal injuries and succumbed on 11th February, 2017 while undergoing treatment at Al Amin Nursing Home. The appellants listed the particulars of negligence alleged against the Respondent and pleaded to be awarded General damages under the Fatal Accidents Act, Law Reform Act, special damages, costs and interest.

3. The 2nd appellant did file her witness statement, where she stated That on 10th February, 2017 at about 4. 50 p.m., she did receive a call from Al Amin Nursing home informing her That her husband, David Mburu Karuri had been admitted at the said Hospital, having been found along Nairobi-Mombasa road, where he was involved in an accident. He later succumbed to his injuries on 11th February, 2017. At the time of his death the deceased was 54 years old and was employed as a heavy commercial lorry driver with Bahari Forwarders Limited and was earning a salary of Kshs. 37,481/= as per month. The deceased left behind (4) dependents namely the 2nd appellant and her three (3) children who were all dependent on him and his absence had left a big void in their lives. She then prayed to be awarded damages.

4. The Respondent filed her Statement of Defence denying the allegations made against her and/or her servant and driver in the plaint and in the alternative blamed the deceased for being negligent and failing to keep any or proper lookout for other road users.

5. As indicated above, the parties did file a consent on liability and proceeded to file submissions to support their respective position on quantum. The appellant being dissatisfied by the judgment filed their memorandum of appeal which raised five (5) grounds of appeal namely That:a.That the learned trial magistrate erred in law and in fact in making an award for general damages under the Law Reform Act specifically for loss of expectation of life That was inordinately low considering That the deceased’s estate suffered irreparable loss.b.That the learned trial magistrate erred in law and in fact in making an award for general damages under the Fatal accidents Act specifically for loss of dependency That was inordinately low failing to appreciate the fact That the deceased was employed in the private sector and not government hence the statutory retirement age of sixty (60) years for government employees could not apply.c.That the learned trial magistrate erred in fact in adopting the multiplier of Kshs. 31,000/= as the deceased earning, when it was proved at the time of his death the deceased was earning a net salary of Ksh. 37,481/=.d.That learned trial magistrate erred in law and in fact in making an award for special damages of Kshs.276,410/= which was lower than the sum of Kshs. 288,255/= That the Appellants had proved by way of receipts.e.That the learned trial magistrate erred in law and in fact in failing to consider the Appellant’s argument and submissions and authorities at all.

Appellant’s Submissions 6. The appellants faulted the trial for awarding general damages under the Law Reform Act for loss of expectation of life That was inordinately low and urged the court to increase the award to Kshs. 350,000/=. Reliance was placed on Moses Akumba & Another -vs- Hellen Karisa Thoya [2017] eKLR, Patrick Kariuki Muiruri & 3 Others -vs- Attorney General [2018] eKLR and Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samuel Kiprotich Tanui (Deceased) -vs- Mogogosiek Tea Factory Co. Ltd. & Another [2018] eKLR, where the court awarded Kshs. 200,000/= for damages under the said head.

7. The appellants further faulted the trial magistrate for failing to appreciate the fact That the deceased was employed in the private sector hence the statutory retirement age at sixty (60) years could not be applied. The deceased was 54 years old and was fit and at the prime of his career, the court thus ought to have used a higher multiplicand and multiplier. Reliance was placed in the citation of Voi Hcca No. 6 of 2014 Chania Shuttle -vs- Mary Mumbi (Suing as the legal Representative of the Estate of the late Francis Mungai Karanja) [2017] eKLR, James Maluu Kiilu -vs- Lawrence Githinji and another [2015] eKLR, Hardev Kaur Dhanoa -vs- Multiple Hauliers (E.A.) Ltd. [2013] eKLR, Joseph Kahiga Gathii & Another -vs- World Vision Kenya & Others [2010] eKLR and Stephen Onsumu Kibagae -vs- Rebeka Mwango Simion & Another [2014] eKLR.

8. With respect to the multiplier, the appellant had placed before court the deceased pay slips proving That the deceased at the time of his death earned a net salary of Kshs. 37,481/=. The trial court appreciated this position and concluded That the net salary kept on varying depending on monthly deductions and ultimately settled on Kshs. 31,000/= as the appropriate net salary. This was an error as the trial magistrate had relied on a pay slip with non-statutory deductions thereby arriving at the figure of Kshs. 31,000/= as the multiplicand. Reliance was placed on Nyeri Civil Appeal No. 220 of 2014 Hellen Waruguru Waweru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) -vs- Kiarie Stores Stores Limited [2015] where it was held That net income is determined by the multiplicand and it is only net of statutory deductions.

9. The appellants finally also faulted the court for wrongly calculating special damages. The receipts produced totaled to Kshs. 288,255/=, yet the court awarded Kshs. 276,410/=. This too was an error and the special damages ought to have been increased to reflect the true amount reflected in all the receipts accumulatively. The appellant thus prays That the appeal be dismissed with costs.

10. The Respondent did not file any submissions in this appeal.

Analysis and Determination 11. In this appeal, the Appellant is only challenging the quantum of damages as awarded with respect to loss of expectation of life and loss of dependency. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004]eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-“It is trite law That the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for That awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied That the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

12. Similarly, in Jane Chelagat Bor vs Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held That:-“In effect, the court before it interferes with an award of damages, should be satisfied That the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough That there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, If the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

13. Further, in the decision of West(H) and Sons Limited vs Shepherd [1964] AC 326 at 345 it was appreciated That;-“The purposes of compensation is not to remedy or re-compensate every injury but must be a reasonable compensation in line with comparable. In order to interfere with the award of the lower Court, this court must be satisfied That the trial court did not exercise its discretion judiciously”

14. The appellants challenged the award under of loss of expectation of life, which was awarded at Kshs 100,000/= and stated That the same was too low, when considered with similar awards and the circumstances of this case. Under the law reform Act, the principle is That damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is That nominal damages will be awarded on these two heads of damages if death followed immediately after the accident.

15. In the case of Mercy Muriuki & Ano Vs Samuel Mwangi Nduati & Another ( Suing as legal administrator of the Estate of of the late Mwangi) 2019 eklr, it was observed That;“The generally accepted principle therefore is That very nominal damages will be awarded on these two heads of damages if death follows immediately after the accident. The conventional award for loss of expectation of life is Ksh 100,000/= while for pain and suffering the award range from Ksh 10,000/= to Ksh 100,000/= with higher damages being awarded if the pain and suffering was prolonged before his death.”

16. As regards loss of expectation of life, it was held in Uganda Electricity Board vs. Musoke [1990-1994] EA 581 That:“Award for loss of expectation of life is made on the basis of loss of prospective happiness by the deceased and the following are the principles for making an award under this head of damages: - 1. Before any damages are awarded in respect of the shortened life, of a given individual, it is necessary for the Court to be satisfied That the circumstances of the individual life were calculated to lead on balance, a positive measure of happiness of which the victim has been deprived by the defendant’s negligence. If the character or habits of the individual were calculated to lead him a future of unhappiness or despondency That would be a circumstance justifying a small award.

2. In assessing damages for this purpose the question is not whether the deceased had the capacity or ability to appreciate That his future on earth would bring happiness. The test is not subjective, and the right sum to award depends on an objective estimate of the kind of future on earth the victim might have enjoyed, whether he had justly estimated That future or not. No regard must be to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.

3. The main reason why the appropriate figure of damages should be reduced in the case of a very young child is That there is necessarily so much uncertainty about the child’s future That no confident estimate of prospective happiness can be made. When an individual has reached an age to have settled prospects, having passed the risk and uncertainties of childhood and having in some degree attained an established character and firmer hopes, his or her future becomes more definite and the extent to which good fortune may probably attend him at any rate becomes less incalculable.

4. Stripped of these technicalities, the compensation is not being given to the person who was injured at all, for the person who was injured is dead. The truth is That in putting a money value on the prospective balance of happiness in years That the deceased might have lived, the Judge is attempting to equate incommensurables. Damages, which would be proper for a disabling injury, may be much greater than for deprivation of life. These considerations lead to the conclusion That in assessing damages under this head, whether in the case of a child or an adult, a very moderate figure should be chosen.

17. The deceased life was cut short by the accident and based on the evidence presented he lead a happy balanced life and was able to fend for his family. Considering similar awards, I do find That the award of Ksh 100,000/= was low considering the circumstances herein and similar awards. The same is hereby set aside and increased to Ksh 200,000/=. See Moses Akumba & Another -vs- Hellen Karisa Thoya [2017] eKLR, Patrick Kariuki Muiruri & 3 Others -vs- Attorney General [2018] eKLR and Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samuel Kiprotich Tanui (Deceased) -vs- Mogogosiek Tea Factory Co. Ltd. & Another [2018] eKLR.

18. With respect to assessment of damages under fatal accidents, in Beatrice Wangui Thairu vs. Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J. as he then was, held at page 248 That:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact That the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

19. The principles which ought to guide a court in awarding damages in fatal accident claims under the head of loss of dependency was dealt with by Ringera, J (as he then was) in Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989 where it was held That:“The court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind That the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction That must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact That the award will be received in a lump sum and if otherwise invested, good returns can be expected.”

20. The appellant faulted the trial court for not considering the fact That the appellant was employed as a driver in private sector, was in perfect health and therefore would not be subjected to the mandatory retirement age of 60 years, which was applicable to public servants. Secondly, they also submitted That the trial magistrate ought to have used a net pay of Kshs 37,481. 00/= which was proved and not Kshs 31,000/= as the multiplicand.

21. The deceased pay slip relied on was for the month of February 2017. While the net pay in the said pay slip was Kshs 37,481. 00/=, the same is arrived at while considering leave pay of Kshs 14,778. 08/=, which is due once yearly and not monthly. The basic pay in the said pay slip is Kshs 31,000/= less deduction of Kshs 8,297. 20/= it brings down the net pay for the deceased to Ksh 22,703/=. As regards the multiplier I do find That the court was in error to use a multiplier of 6 years. Given That the deceased was in good health and was still at the prime of his career I do find That the deceased would have comfortably worked for another 11 year or so before slowing down given the nature of his job. See Voi Hcca No. 6 of 2014 Chania Shuttle -vs- Mary Mumbi (Suing as the legal Representative of the Estate of the late Francis Mungai Karanja) [2017] eKLR, James Maluu Kiilu -vs- Lawrence Githinji and another [2015] eKLR, Hardev Kaur Dhanoa -vs- Multiple Hauliers (E.A.) Ltd. [2013] eKLR, Joseph Kahiga Gathii & Another -vs- World Vision Kenya & Others [2010] eKLR and Stephen Onsumu Kibagae -vs- Rebeka Mwango Simion & Another [2014] eKLR.

22. Based on the above findings I do set-aside the award of loss of dependency and re-calculated the same on the basis of 22,703 x 11 years x 12 months x 2/3= Ksh1,997,864/=. As regards special damages the receipts as filed total up to Kshs 276,410/= as awarded by the trial magistrate and not Ksh 288,255/= as pleaded. The same award is therefore not disturbed.

C. Disposition 23. This appeal thus has merit. The Judgment of Hon C.C Olouch (SPM) delivered in Mavoko CMCC NO 160 of 2018 on 25th January 2019 is partially set aside. The award of loss of expectation of life is increased to Ksh 200,000/=, while the award of loss of dependency is increased to Ksh. 1,997,864/=.

24. In summary, the award are thus as follows:-Liability ……………………………………………80:20%Pain and suffering……………………………..Kshs 50,000/=Loss of Expectation of life…………………..Kshs 200,000/=Loss of Dependency…………………………..Kshs 1,997,864/=Special Damages………………………………Ksh 276,410/=Total……………………………………………… Kshs 2,524,274/=Less 20% contributory Negligence………..2,019,419. 20/=

25. The appellants will get half costs of this appeal which is assessed at Kshs 170,000/= all inclusive.

26. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of:Mr Kirui for the AppellantNo appearance for RespondentSusan Court Assistant