[2022] KEHC 27054 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO.E003 OF 2021

BETWEEN

KENANI ONCHARI........................................................1ST APPELLANT

HESBON OMUNDI OSORO.........................................2ND APPELLANT

AND

CATHERINE NYABOKE NYAPENI (Suing as the legal representative of the estate of

FESTUS OMAMBIA ODHIAMBO)................................RESPONDENT

(Being an Appeal from the judgment in Oyugis Senior Principal Magistrate’s CMCC No. 35 of 2018 by Hon. B.O Omwanza– Principal Magistrate).

JUDGMENT

1. The appellants herein, were the defendants in Oyugis Senior Principal Magistrate’s SPMCC No. 35 of 2018. This was a claim that arose from a road traffic accident involving motor vehicle registration number KCF 752R owned by the 1st appellant and driven by the 2nd appellant, with a motor vehicle registration number KCE 893K in which the deceased was a passenger. The learned trial magistrate delivered judgment dated 9th December, 2020. He gave an award of Kshs. 93,450. 00 special damages and Kshs. 2,180,000. 00 in general damages in favour of the respondent. This was before factoring in the contributory negligence.

2. The appellants were aggrieved by the said judgment and filed this appeal. They were represented by the firm of Kimondo Gachoka & Company Advocates. They raised six grounds of appeal as follows:

a) That the learned trial magistrate erred in law and in fact in awarding Kshs.2, 046,105/- as damages which amount was excessive and lacked basis.

b) That the learned trial magistrate erred in law and in fact in awarding kshs.2,000,000/- as general damages for loss of dependency which amount was excessive, unjustified and contrary to the evidence on record.

c) That the learned trial magistrate erred in law and in fact in awarding kshs.80,000/- as general damages for pain and suffering which amount was excessive, unjustified and contrary to the evidence on record.

d) That the learned trial magistrate erred in law and in fact in failing to find that since there was no evidence to prove the multiplicand proposed nor the deceased’s earnings, then the minimum wages for the material time was applicable in the circumstances.(that is, Legal Notice No.112 of 2017, the Regulation of Wages (General) (Amendment) order, 2017).

e) That the learned trial magistrate erred in law and fact by failing to consider the appellant’s evidence and submissions on record.

3. The appeal was opposed by the respondent through the firm of Sonye J. Ondari & Company Advocates. He urged the court to find that the appeal has no merits.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The parties herein entered judgment on liability by consent. The trial magistrate was left with task of assessing damages.

6. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349at page 356 Law JA stated:

…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 so arrived a figure which was either inordinately high or low.

7. The deceased herein died at the age of 31 years. His widow (PW1) testified that he used to earn Kshs.30, 000. 00 monthly as a conductor. There was no proof of this figure in any way. When Ringera J.(as he then was) was confronted by a similar issue opined, in Kwanzia vs. Ngalali Mutua and citedD.M.M (Suing As The Administrator And Legal Representative Of The Estate Of L K M vs. Stephen Johana Njue & another [2016] eKLRas follows:

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 facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of 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.

8. In the instant case, though the earning was not proved, I do not consider the award in general damages too high. Had the trial court used the global award approach, the award would have been more or less the same.

9. From the foregoing, I will not interfere with the award. The appeal is therefore dismissed with costs.

DELIVEREDandSIGNEDatHOMA BAYthis2nd day of March, 2022

KIARIE WAWERU KIARIE

JUDGE