[2012] KEHC 988 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Civil Appeal 501 of 2008 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>

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Editorial Summary

1. Civil Appeal

2. Subject of Subordinate Court Case

TORT

2. 1 Running down cause.

2. 2 Motor vehicle collision.

2. 3 Motor vehicle KUV 506 towed by motor vehicle

KAG 902F. Tow cable breaks. KAG 902F leaves

lane on a dual carriage way and cross over island

and collides into opposite dual carriage way along

Waiyaki Way and collides into motor vehicle matatu

(PSV) KAP 258D

2. 4 Liability determined at 100% by High Court

(Test suit)

HCC 828/03

Marion Njeri Kagoi

Vs

Kenya Railways Corporation

Ang’awa J – 5th February 2007

2. 5 Original suit

Samwel Mugwe Gioche

Vs

Kenya Railways Corporation

CMCC 10075/02

(24th August 2008)

2. 6 Issue of quantum only.

2. 7 Awards:

General Damages

i) Loss of dependant Ksh. 2,155,464/-

ii) Loss of expectation of life Ksh. 100,000/-

iii) Damages pain & suffering Ksh.10,000/-

iv) Special damages Ksh. 45,520/-

2. 8 Court awards only Ksh. 2 million – maximum

allowed on magistrate’s jurisdiction.

3. Appeal

by respondent/original plaintiff

3. 1 Award too excessive

a) Awarded 2,155,464/- loss of dependency

b) Ksh. 100,000/- awarded for loss of expectation

of life.

c) Ksh. 10,000/- awarded for pain and suffering.

d) Award excessive and not proportional to

loss occasioned to deceased estate.

e) Weight of evidence on record does not support

the magistrate’s findings.

f) … failed to evaluate and analyze the evidence in

support of appellant’s

4. Submissions:

By appellant/original defendant

4. 1 All appeals against the award now agreed upon

except the issue of a multiplier.

4. 2 Multiplier should have been 15 years and not

27 years.

By respondent/original plaintiff

4. 3 Whereas no cross appeal had been filed, multiplier

of 27 years is adequate.

5. Held:

i) Multiplier of 27 years upheld.

ii) Trial magistrate’s decision not interfered with, save

as to the multiplicand. The basic salary being

Ksh. 10,740/-

iii) Appeal dismissed with costs to the respondent

plaintiff

6. Case Law:

a) Marion Njeri Kagoi

Vs

Kenya Railways Corporation

(Test Suit) HCC 828/03

Ang’awa J

b) Kemfro Africa Ltd t/a Meru Express Serivces (1976) & Another

Vs

Lubin & Another

(1987) KLR 30 (Kneller, Nyarangi JJA & Cheson AgJA)

c) Margaret Wangui Kioko

Vs

Mugs Kenya Ltd

HCC 2005/99

Ang’awa J

d) Kellen Wanjeri Kimani – Vs – Waweru Machere

HCCC 2068/98

Ang’awa J

7. Advocates:

i)P.K. McAsila holding brief for M. Muli instructed by M/s Musyoka Wambua & Katitu & Co Advocates for appellant/original defendant

ii)G. Gitau instructed byM/s Gachiengo Gitau & Co Advocates for respondent/original plaintiff

KENYA RAILWAYS CORPORATION ……………..….… APPELLANT/ORIGINAL DEFENDANT

VERSUS

SAMWEL MUGWE GIOCHE ………….…………….…… RESPONDENTORIGINAL PLAINTIFF

(Being an appeal from the Judgment of Hon. V.W. Wandera Esq, Senior Principal Magistrate in Civil Case No. 10075 of 2002 dated 25th August 2008 at Milimani Commercial Courts)

J U D G M E N T

I.INTRODUCTION

1. A motor vehicle collision occurred along Waiyaki Way on the 13th August 2005. A public service vehicle commonly known as a matatu in Kenya, registration No. KAP 258D travelled along the Waiyaki Way along a dual carriage way. On the dual carriage way going into town and which was separated by an island between the two dual carriage way was a lorry motor vehicle KAG 902F being a vehicle towing motor veicle KAV 506. The vehicle KAG 902F left its lane when the tow bar broke crossed the island separating the two dual carriage way and drove into the dual carriage way on the opposite side of the road. It collided into the matatu motor vehicle registration KAP 258D that had been carrying several passengers.

2. HCC 828/03 Marion Njeri Kago – Vs – Kenya Railways Corporation (Ang’awa J) was used as a test case under Order XXXVII rule 1 Civil Procedure Rules.

3. In that test suit, the court ruled that liability was established at 100% against M/s Kenya Railways Corporation. They were held to be vicariously liable for the acts of its agents and or servants.

4. No appeal appears to have been filed against this decision. Each respondent persons who sued the defendants returned to their own courts to complete their cases on quantum, the liability having been determined.

5. In this appeal, the respondent original plaintiff had sued in damages for the fatal injuries suffered by his late wife. This was the case of:

Samwel Mugwe Gioche (suing as the representative of the estate of

Juliana Nthangu Fredrick

Vs

Kenya Railways Corporation Ltd

CMCC 10075/02 (now CA 501/08)

6. The trial court considered the submissions and hearing before it on quantum. The court noted that the plaintiff sought the following award:

By the plaintiff:

6. 1 Loss of dependency

Ksh. 10,240/- (multiplicand)

X 27 years (multiplier) X 12 (months) X⅔ =

Ksh. 2,211,840/-

6. 2 Loss of expectation of life

Ksh. 100,000/-

6. 3 Damages

Pain and suffering

Ksh. 10,000/-

6. 4 Special damages

Ksh. 45,520/-

Total Ksh. 2,310,984/-

By the defendant

6. 5 Loss of dependency

Ksh. 10,240 (multiplicand)

X 13 years (multiplier) X 12 months X⅔ =

Ksh. 1,036,880/-

7. The trial magistrate, whilst agreeing with the award on the other hand. He combined the prayers under the Law Reform & the Fatal Accident Act into one. He did not address himself on the issue of multiplier which in contention but dealt with the issue of multiplicand.

8. This was by reducing the basic salary of Ksh. 10,240/- to the next salary of Ksh. 9. 979/-. This calculation was:

8. 1Ksh. 9. 979/- (multiplicand) X 27 years (multiplier)

X 12 months⅔ = Ksh. 2,155,464/-

8. 2The rest of the claim was not interfered with but the total sum summarized as follows before was reduced. Namely:

8. 2.1 Loss of dependency Ksh. 2,155,464/-

8. 2.2 Loss of expectation of life Ksh. 100,000/-

8. 2.3 Damages pain and suffering Ksh. 10,000/-

8. 2.4 Special damages Ksh. 45,520/-

Total Ksh. 2,310,984/-

9. The trial court reduced the total sum of Ksh. 2,310,984/- to

Ksh. 2 million because that was his pecuniary jurisdiction. That he was permitted to award (25th August 2008).

10. The defendant/respondent filed appeal to this High Court. The appellant/original plaintiff did not appeal against the decision.

IIAPPEAL

11. The learned magistrate erred in law and misdirected herself.

11. 1… by awarding Ksh. 2,155,464/- for loss of dependency

11. 2… by awarding Ksh. 100,000/- under loss of expectation of life.

11. 3… by awarding Ksh. 10,000/- for pain and suffering.

11. 4The learned magistrate’s award was excessive and not proportional to the loss occasioned to the deceased’s estate.

11. 5. The weight of evidence on record does not support thelearned magistrate’s findings.

11. 6The learned magistrate erred in law in failing to evaluate and analyze the evidence in support of the appellant’s case.

12. The appellant prayed that this appeal be allowed and the judgment of the trial court be set aside. “That the costs of this appeal and costs in proceedings at the lower court be awarded to the appellant.”

13. There was no indication by the appellants what award they prayed be made. The respondent plaintiff did not cross appeal.

IIISUBMISSIONS

i) By the Appellant Original Defendant

14. The appellants did not pursue the memorandum of appeal prayers No. (2) and (3), save for the issue of the multiplier. The rest of the claim was otherwise satisfactory. What the appellant wished was the multiplier to be 13 years. The multiplicand to remain the same at

Ksh. 10,240/- making a total of Ksh. 1,036,880/-

15. The respondent/original plaintiff prayed that the multiplier be 27 years as reasonable. The sum of Ksh. 10,240/- was used as a multiplicand by both parties.

IVOPINION

16. The main contention in this appeal is that of the multiplier of 27 years. This was objected to by the respondent and wished that the multiplier be 13 years. The effect of a multiplier of 13 years would substantially reduce the award given from Ksh. 2,155,464/- to Ksh. 1,036,880/-

17. In looking at the issue of a multiplier, the court takes into account the education of the deceased, her experience and achievements. What she would have continued to become later on in life.

18. The deceased herein produced excellent grades obtained from her training at the Animal Health & Industry Training Institute

(AHITI – Kabete) where out of a subject of 50 she scored all As, Bs & Cs. She went on to become a branch manager at Jumbo Agrovet, a farm dealing with zero grazer – centre, a veterinary agriculture and hygiene centre.

19. At the age of 28 years only, she earned a basic pay of Ksh. 10,740/-. Her net salary after statutory deductions was Ksh. 9. 979/-

20. When the trial magistrate came to her findings, she did not interfere with the multiplier of 27 years as suggested by the plaintiff/respondent. What she did was to reduce the basic salary from Ksh. 10,740/- to Ksh. 9,979/-, an issue that had not been in contention.

21. I would find that the basic salary remain Ksh. 10,740/-. This is a fact that is not disputed. It is also the basic salary only that is used, for a person who has a salary as a multiplicand.

22. On the issue of a multiplier, this court has held in past decisions that a person’s years of how long they would have worked when alive would be used. This would be based normally on the retirement age of a civil servant, although where proof of retirement is based on more years is given it would be taken into account.

23. This was held as such in the case law of

Margaret Wangui Kioko

Vs

Muus Kenya Ltd

HCC 2005/1999

Where the deceased husband, a cyclist who died in a road traffic accident, aged 39 years, the court took the lost years he would have lived and been productive to be 15 years.

24. I would in the circumstance uphold the multiplier at 27 years old as determined by the trial court.

25. Thus under the claim for lost years the sum would be

Ksh. 10,740/- X 27 X 12 X ⅔ =

Ksh. 2,211,840/-

26. As the appellant conceded to the rest of the claim, the award for the respondent/plaintiff in the magistrate’s court would be based on the case law of

Kemfro Africa Ltd t/a Meru Express Services 1976 & Another

Vs

Lubia & Another (No. 2)

(1987) KLR 30

27. In this case law, the issue of claims under the Law Reform Act and the Fatal Accidents Act is discussed.

28. The award under the Law Reform Act is given as “the deceased’s own cause survives for the benefit of his estate.” “Damages for pain, suffering, loss of amenities and earning are for the period.” that the deceased had survived. If the death is immediate, the only reasonable sum would be the loss of expectation of life.

29. It is in order for persons claiming under the Law Reform Act to also claim under the Fatal Accidents Act. This is only when “a person entitled to the estate are the same [same] persons for whose benefit the action under the Fatal Accident Act is brought and not otherwise.”

30. There under the

ALaw Reform Act

32. 1 Pain and suffering Ksh. 10,000/-

32. 2 Loss of expectation of life Ksh. 100,000/-

32. 3 Lost years

Ksh. 10,740/- X 27 X 12 X⅔ =

Ksh. 2,211,840/-

Total Ksh. 2,321,840/-

BFatal Accidents Act

31. The award under the Fatal Accident Act herein entitles the deceased’s widower to sue also under this act for his benefit and that of the minor child.

32. Thus

Fatal Accident Act

Loss of Dependency

Ksh. 10,740/- X 27 X 12 X⅔ =

Ksh. 2,211,840/-

33. This sum is “to be taken into account.” (This means that the said sum awarded was also awarded under the Law Reform Act for the non-pecuniary loss.)

34. The law requires that the sum be discounted where the deceased is a male and the widow may remarry early. I find that this should apply also to the widower to remove any element of discrimination. There is also the issue of early accelerated payments to require a discount.

35. The law also requires under the Fatal Accidents Act, the sum awarded be so given to the minor for investment until the minor attains the age of majority. In Kenya, this is said to be 18 years of age.

36. The trial magistrate conceded that there was no jurisdiction to award a sum beyond Ksh. 2 million. I would therefore not interfere with this admission. The advocate for the respondent/plaintiff should have filed this matter in the High Court. The sum over and above is treated as a discount.

37. Therefore the figure of Ksh 2 million would be approved as follows between the dependants.

37. 1Widower Ksh. 500,000/-

37. 2Son aged 2 years old

Simon Gioche Mugwe at the time of

filing suit on 16th December 2002 Ksh. 1,500,000/-

Total Ksh. 2,000,000/-

38. That the sum of Ksh. 1. 5 million be invested in an interest earning account in the name of the widower Samwel Mugure Gioche and the Registrar of the High Court of Kenya in the institution of the widower’s choice, failure to a Savings and Loans Ltd until the minor attains the age of majority.

39. There is a further sum in special damages awarded of Ksh. 45,520/-. This sum though proved was not awarded on grounds that the trial magistrate had no pecuniary jurisdiction to award more that what had been allowed by law to award as to his jurisdiction.

40. I would agree that whereas there had been an award made by the trial magistrate of a total of Ksh. 2,310,984/-. That this court the court award be Ksh. 2,820,984/- would only be entitled to Ksh. 2 million.

VIN CONCLUSION

41. The appeal be and is hereby dismissed save as to the court’s adjustments to the award investments.

42. In summary:

42. 1Running down cause

42. 2Motor vehicle collision

42. 3Female passenger aged 28 years old in 2002

42. 4Liability 100%

Test suit High Court

HCC 828/03

Marion Njeri Kago – Vs – Kenya Railways Corporation

Ang’awa J

(5th February 2007)

42. 5Quantum

Law Reform Act

i) Pain & Suffering Ksh. 10,000/-

ii) Loss of expectation of life Ksh. 100,000/-

iii) Lost years

Ksh. 10,740 X 27 X 12 X⅔ =

Ksh. 2,211,840/-

Fatal Accident Act

i) Loss of dependency

Ksh. 10,740/- X 27 X 12 X⅔ =

Discounted Ksh. 211,840/-

Total Ksh. 2,000,000/- taken into account.

42. 6 That the sum of Ksh. 2 million be invested in an

interest earning account in the name of

Samwel Mugwe Gioche and the Registrar High Court

of Kenya.

42. 7 That the sum of Ksh. 1. 5 million of the Ksh. 2 million

be invested for the minor Simon Mugwe Gioche till

the attainment age of majority.

42. 8 That the sum of Ksh. 500,000/- be paid to the widower

Samwel Mugwe Gioche.

42. 9 That the fatal accident claim is taken into account.

Special Damages

42. 10 That the special damages claim Ksh. 45,520/-

whereas allegedly proved be not awarded.

42. 11 Whereas all other sums over and above

Ksh. 2 million being the pecuniary jurisdiction

of the court is not awarded. (Ksh. 820,984/-)

43. That there be costs of this appeal to the respondent/original plaintiff.

44. That there be costs of the magistrate’s court case to the original plaintiff.

45. There will be interest on Ksh. 2 million from the date of judgment

25th August 2008.

DATED THIS 24TH DAY OF OCTOBER 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)P.K. McAsila holding brief for M. Muli instructed by M/s Musyoka Wambua & Katitu & Co Advocates for appellant/original defendant

ii)G. Gitau instructed byM/s Gachiengo Gitau & Co Advocates for respondent/original plaintiff