[2022] KEHC 567 (KLR)

Kenya Power and Lighting Co. Ltd v Lopeta (Suing on behalf of the Estate of Evans Yeko Lopeta (Deceased)) (Civil Appeal 2 of 2020) [2022] KEHC 567 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 567 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Civil Appeal 2 of 2020

WK Korir, J

June 8, 2022

Between

Kenya Power and Lighting Co. Ltd

Appellant

and

Evans Yeko Lopeta (Suing on behalf of the Estate of Evans Yeko Lopeta (Deceased))

Respondent

(Being an appeal from the judgment and decree of Hon. S.K. Mutai, PM, delivered on 5th May, 2020 in Kapenguria PMCC No. 22 of 2019)

Judgment

1. The Appellant, Kenya Power & Lighting Company Limited, had been sued for general damages under the Law Reform Act and the Fatal Accidents Act at Kapenguria Principal Magistrate’s Court by the Respondent, Elgah Ritakwang on behalf of the estate of the deceased Evans Yeko Lopeta. The deceased had been electrocuted on 26th May, 2019 and sustained fatal injuries. In the cause of the trial a consent judgment on liability was entered in favour of the Respondent and against the Appellant at the ratio of 80:20.

2. In a judgement delivered on 5th May, 2020, the trial court awarded damages to the Respondent as follows:“Consequently, I enter judgement for the plaintiff as against the defendant as follows:-a.Pain and suffering 100,000/-b.Loss of expectation of life 200,000/-c.Loss of dependency 2,000,000/-Total 2,300,000/-Less 20% contribution 460,000/-1,841,000/-Plus special damages 1,000/-Total 1,841,000/-Together with the costs of the suit and interest.

3. The Appellant being dissatisfied with the quantum of damages awarded to the Respondent filed this appeal which according to the memorandum of appeal dated 4th June, 2020 is premised on the grounds that the damages were inordinately excessive; assessed using wrong principles; did not take into account the Appellant’s submissions; and were not commensurate with the age of the deceased. The Appellant asked this Court to set aside the damages of the trial court and assess the damages afresh.

4. The appeal was opposed.

5. The advocates for the parties agreed that the appeal be canvassed by way of written submissions.

6. Through submissions dated 19th November, 2021, the Appellant relied on the cases of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR and Charles Owino Odeyo v Apollo Justus Andabwa & another [2017] eKLR to submit that for an appellate court to interfere with an award of damages, the appellant only needs to show that the trial court acted on a wrong principle of the law or that the award was excessively high. It was submitted that indeed the award by the trial court is extremely high and based on wrong principles of law.

7. Turning to the awards on various heads, the Appellant submitted that the award of Kshs. 100,000/= for pain and suffering was inordinately high and punitive to the Appellant as opposed to compensating the injuries sustained. On this issue, reliance was placed on the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as legal representatives of the Estate of Robert Mwangi (deceased)) [2019] eKLR. The Appellant further relied on the case ofSimon Bogonko v Alfred Mecha & another (suing as legal representatives of the Estate of Akama Mong’are (deceased)) [2019] eKLR to urge this Court to reduce the award under this head to Kshs. 20,000/=.

8. The Appellant submitted that the trial court did not follow the procedure outlined under the Law Reform Act and Fatal Accidents Act. It is argued that Section 2 of the Law Reform Act bar courts from including exemplary damages when calculating the benefits of a deceased’s estate and that such damages should not take into consideration any loss or gain to the estate. This Court was urged to consider and apply the principles for assessment of damages as stated in the case of Boniface Waiti & another v Michael Kariuki Kamau [2007] eKLR.

9. The Appellant contended that that the award of Kshs. 200,000/= for loss of expectation of life was excessive because the deceased was a toddler aged 3½ years at the time of his death and that his future was unknown. The Appellant cited the cases of Benham v Gambling (1941) AC 257; Mercy Muriuki & another (supra); and Kwamboka Grace v Mary Kemuma Mose & another [2017] eKLR in support of the argument that an award of Kshs. 100,000/= for loss of expectation of life was appropriate in the circumstances of this case.

10. On loss of dependency, the Appellant argued that the award of Kshs. 2,000,000/= was inordinately excessive and that this Court should set it aside and award the sum of Kshs. 300,000/=. The Appellant submitted that the deceased had not commenced school and that no evidence was adduced to create a picture of how the future of the deceased would look like. The case of Kwamboka Grace(supra) was cited in support of the proposed award of Kshs. 300,000/= under this head.

11. In the submissions dated 17th January, 2022, the Respondent argued that in awarding Kshs. 100,000/= for pain and suffering, the trial court noted that awards under this head were between Kshs, 10,000/= and Kshs. 100,000/= over the past 20 years. On the principles to be considered when making an award for pain and suffering, the Respondent referred to the case of Coast Bus (MSA) Ltd v Fatimabhai Osman Suleiman & another (suing as the legal representatives of the Estate of Aslam Jeferali Juma (deceased)) [2020] eKLR where the Court held that the element of pain and suffering has two limbs being the element of pain and that of suffering.

12. Turning to the award for loss of expectation of life, the Respondent relied on the case of Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR to submit that the trial court did not err in awarding Kshs. 200,000/= as the life of the deceased was cut short at a very tender age. The Respondent further relied on Oshivji Kuvenji & another v James Mohamed Ongege [2012] eKLR in support of the assertion that there is no uniform principle in assessing damages.

13. The Respondent rejected the Appellant’s submission that the trial court used the wrong principles in assessing the damages. The Respondent relied on the case of Kenya Power and Lighting Copany Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR as highlighting the principles to be applied in assessing damages. The Respondent further submitted that the award of damages is within the discretion of the trial court and an appellate court can only interfere with the award if it is clear that the trial court erred in principle or law. The Respondent cited the case of Loice Wanjiku Kagunda v Julius Gachau Mwangi, CA 142 of 2003 and urged this Court not to disturb the awards because the trial court applied the right principles.

14. In conclusion, the Respondent submitted that the appeal was without merit and urged the Court to dismiss it with costs.

15. This appeal is limited to the quantum of damages awarded to the Respondent by the trial court. Therefore, the questions for the determination of this Court are whether the trial court applied the wrong principles in assessing the damages and whether the awards are inordinately excessive.

16. The issues will be addressed as one as they touch on every aspect of the award. It is the Appellant’s case that the trial court erred in awarding inordinately high damages to the Respondent. The Appellant contends that the awards are inordinately high because the trial court relied on and applied the wrong principles of law. The Respondent is of the contrary view.

17. The law is that for an appellate court to interfere with award of the trial court, the appellant must demonstrate that the trial court acted on the wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the injury suffered. In support of this statement of the law, I only need to cite the holding of the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR that:“Further, it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

18. This being a first appeal, this Court has a duty to analyze and re-examine the evidence adduced in the trial and reach its own conclusions. In doing so, this Court must be alive to the fact that the trial court had the benefit of hearing and seeing the witnesses which benefit this Court does not enjoy-see Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR.

19. In this appeal, the Appellant contends that the award of Kshs. 100,000/= for pain and suffering is inordinately high and punitive. The Appellant urged this Court to consider an award of Kshs. 20,000/=. On her part, the Respondent submitted that the trial court cannot be faulted for giving her that amount because when making the award, the trial court noted that awards for pain and suffering have ranged from Kshs, 10,000/= to Kshs. 100,000/= over the past 20 years. She urged this Court not disturb this award as it is reasonable.

20. I will look at the amounts awarded for pain and suffering in decided cases. In Mercy Muriuki & another (supra), it was held that the “conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

21. InSukari Industries Limited v Clyde Machimbo Juma [2016] eKLR where the deceased had died immediately after the accident, the award of Kshs. 50,000/= for pain and suffering by the trial court was upheld on appeal where it was stated that:“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”

22. In this case, the Respondent who testified as PW1 stated that the deceased died on the date of the accident. From the cited authorities it is clear that awards for pain and suffering range between Kshs. 10,000/= and Kshs. 100,000/=. However, this award is dependent on how long the deceased suffered prior to his death. In this case, the deceased passed away on the date of the accident. It is presumed that every death is preceded by pain and suffering and much as we try to measure the pain and suffering, it is only the deceased who endures the pain and suffering and knows the intensity. The award for pain and suffering, is in my view, almost speculative in nature. For instance, in Josephine Kiragu v Vyas Hauliers Ltd [2017] eKLR, the award of Kshs. 10,000/= to the estate of the deceased who had died instantly, was on appeal raised to Kshs. 30,000/= with the Court stating that the award of Kshs. 10,000/= was on the lower side. In Simon Bogonko v Alfred Mongare Mecha & another (Suing as the Legal Representatives of the Estate of Akama Mong’are (Deceased)) [2019] eKLR, an award of Kshs. 100,000/= for pain and suffering was reduced to Kshs. 20,000/=. Similarly, inOmanga Fish Limited v CKB & JM (Suing as the Legal Representatives of The Estate of JMM (Deceased)) [2019] eKLR, an award of Kshs. 100,000/= for pain and suffering was reduced to Kshs. 20,000/=. In the already cited case of Sukari Industries Limited an award of Kshs. 50,000/= for pain and suffering was not disturbed on appeal. In all these cases, the deceased persons had died instantaneously. In my view therefore, Kshs. 100,000/= is on the upper limit of the award for pain and suffering and it should only be made to the estates of deceased persons who endure a lot of pain and suffering for some period of time before succumbing to the injuries caused by the accident in question. In this case, the deceased passed away on the date of the accident. In the circumstances, the award of Kshs. 100,000/= for pain and suffering failed to take into account the legal principle that the period between the time of the accident and death determines the amount to be awarded. The Appellant has therefore established that the trial magistrate failed to take into account a principle of law and ended up awarding an inordinately high amount. The appeal on this head therefore succeeds. The award of Kshs. 100,000/= for pain and suffering is set aside and substituted with an award of Kshs. 50,000/=.

23. The Appellant challenged the award of Kshs 2,000,000/= for loss of dependency arguing that the same is inordinately excessive and that this Court should set it aside and instead award Kshs. 300,000/=. In support of this proposal, the Appellant argued that the deceased had not commenced school and that no evidence was adduced to create a picture of how the future of the deceased would look like. On her part, the Respondent argued that the trial court relied on the right principles in awarding the amount. She urged this Court not to interfere with the trial court’s award on this head.

24. There is no prescribed method for assessing awards for loss of dependency. Each case is always determined on its own merit and facts. The awards by our courts in similar claims will also be taken into account. In this case, the deceased was three and half years old. No reasonable picture of the deceased’s future could fairly be painted in such circumstances. It can, however, be said that in a country like ours where there is a policy supporting free primary education, the deceased would have at least attained basic education which would have provided him with skills to earn some living and therefore provide for his dependants. However, basing the award on such a lofty picture would take us into the realm of speculation.

25. In making the award of Kshs. 2,000,000/=, the trial magistrate stated that the deceased had more years to live with prospects of a bright future, that the award was conventional, and that he had taken into account the age of the cited authorities. The authorities relied on are listed in the judgement. I have looked at those authorities. In Apollo Maina v Grace Njambi Irungu [2014] eKLR, an award of Kshs. 400,000/= for lost years in respect to the estate of a five-year old child was upheld on appeal. I find that the awards for loss of dependency in Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLR were irrelevant to the circumstances of this case because the deceased persons in that case were adults with known sources of income. As for the case of John Kinyanjui Thumbi & another v Irene Wambui Nduata & another [2018] eKLR, an award of Kshs. 1,000,000/= for loss of dependency in respect of the estate of a child aged three years and six months was reduced on appeal to Kshs. 500,000/=. Therefore, the two relevant authorities referred to in the judgement of the trial court show that recent awards for loss dependency for estates of minors who are yet to start school oscillate between Kshs. 400,000/= and Kshs. 500,000/=.

26. The judgement appealed against herein was delivered in 2020, two years after the judgement in John Kinyanjui Thumbi & another (supra). Based on the authorities that were cited, the trial court erred in making an unsupported award of Kshs. 2,000,000/=. The magistrate acted on the wrong principle of law by not taking into account the awards in the cases that had been cited before him and this resulted in an inordinately high and unjustifiable award on the head of loss of dependency. There is therefore merit on the Appellant’s challenge to the award for loss of dependency and the appeal succeeds.

27. The cited cases ought to have guided the trial magistrate in reaching a reasonable award. The award of Kshs. 2,000,000/= for loss of dependency is set aside. Based on the decisions that were cited before the trial court, I substitute that award of Kshs. 2,000,000/= with an award of Kshs. 600,000/=.

28. Finally, the Appellant contended that that the award of Kshs. 200,000/= for loss of expectation of life was excessive because the deceased was aged three and a half years at the time of death and his future was unknown. The Respondent does not see any error in the award of Kshs. 200,000/= for loss of expectation of life.

29. In the case of Benedeta Wanjiku Kimani (supra) which was cited by the Respondent, Kshs. 100,000/= was awarded for loss of expectation of life. A similar amount was awarded under the same head in John Kinyanjui Thumbi & another (supra). An award of Kshs. 140,000/= for loss of expectation of life was upheld on appeal in Apollo Maina (supra). I would not say an award of Kshs. 200,000/= for loss of expectation of life is excessive in view of the awards made in the cited authorities. I therefore reject the appeal against this award and will leave the award undisturbed.

30. In summary, the appeal partially succeeds. The trial court’s judgement is set aside in respect of the award of Kshs. 100,000/= for pain and suffering. This award is substituted with Kshs. 50,000/=. The trial court’s judgement is likewise set aside in regard to the award of Kshs. 2,000,000/= for loss of dependency. This award is substituted with an award of kshs. 600,000/=. The other awards by the trial court will remain undisturbed.

31. In view of the partial success of the appeal, the judgement will be as follows:(a)Pain and suffering Kshs. 50,000/=(b)Loss of expectation of life Kshs. 200,000/=(c)Loss of dependency Kshs. 600,000/=Total Kshs. 850,000/=Less 20% contribution Kshs. 170,000/=Kshs. 680,000/=(d)Add special damages KShs. 1,000/=Grand Total Kshs. 681,000/=

32. The judgement will attract interest from the date of judgement in the trial court until payment in full. For avoidance of doubt, the order on costs issued by the trial court in regard to the proceedings before the trial court remains undisturbed. Owing to the partial success of the appeal, the Appellant will have half the costs of the appeal from the Respondent.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 8TH DAY OF JUNE, 2022. W. KORIR,JUDGE OF THE HIGH COURT