[2023] KEHC 26924 (KLR)

Kenya Wildlife Service v Teteya (Suing as the legal representative of the Estate of Lokusegelan (Deceased) (Civil Appeal 10 of 2020) [2023] KEHC 26924 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26924 (KLR)

Republic of Kenya

In the High Court at Marsabit

Civil Appeal 10 of 2020

JN Njagi, J

December 14, 2023

Between

Kenya Wildlife Service

Appellant

and

Galsarachero Teteya (Suing As The Legal Representative Of The Estate Of Lokusegelan (Deceased)

Respondent

(Being an appeal from the judgment and decree of Hon. Collins Ombija, R.M, in Marsabit PM`s Court Civil Case No.6 of 2019 delivered on 16/9/2021)

Judgment

1. The respondent herein brought suit against the appellant in his capacity as the legal representative of the estate of the deceased seeking damages under the Fatal Accidents Act and Law Reform Act after the deceased died as a result of a snake bite at Karare area adjacent to Marsabit National Park. The parties entered consent on liability in the ratio of 80:20 in favour of the Respondent. The trial magistrate proceeded to award damages as follows:(a)General damages ……………………. Kshs.3,500,000/=(b)Loss of expectation of life……………Kshs.100,000/=(c)Special damages ………………………Kshs.20,000/=(d)Costs of the suit and interest.

2. The appellant was aggrieved by the judgement of the trial court and filed the instant appeal. The grounds of appeal are that:a.The learned trial magistrate erred in law and fact by awarding general damages in the sum of Kshs. 3. 5 Million which amounts is inordinately excessive in the circumstances of this matter.b.The learned trial magistrate erred in law and fact by failing to consider the general viscitudes of life and the fact that the deceased could have died of other causes and thereby arrived at an award of general damages which is inordinately excessivec.The judgement of the learned trial magistrate is against the law and weight of evidence on record.

3. The appeal proceeded by way of written submissions.

Appellant’s Submissions

4. The appellant submitted that the respondent did not prove his relationship with the deceased and thus did not qualify for an award under Section 4(1) of the Fatal Accidents Act.

5. The appellant submitted that the respondent under paragraph 6 of the plaint pleaded that the dependant was Loku Segelan which cannot be the case as that person is the deceased in this matter. That the respondent in addition stated in his statement dated 28/1/2019 that he is father to the deceased person. However that in cross-examination, he confirmed that the deceased was his nephew and not his son. Therefore, that the respondent was not a beneficiary of the estate of the deceased and could not be paid compensation for the death of the deceased. The appellant in that respect relied on the provisions of section 4 of the Fatal Accidents Act, Cap 32 of the Laws of Kenya, that provide as follows:4. Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.

6. The appellant further submitted that section 8 of the Fatal Accidents Act places a mandatory requirement that the particulars of the person or persons for whom, and on whose behalf the action is brought be pleaded. That the plaint did not meet that mandatory requirement and thus the award on loss of dependency cannot be sustained. To buttress this, point the appellant relied on the holding in the case of Aphia Plus Western Kenya & another v Anyango Kadenge & another (2015) eKLR where Mrima J held as follows:In this case, the dependants set out in the plaint were deceased’s brothers and father. However, from the evidence I have outlined, the person referred to as the father turned out to be the uncle and was therefore not a beneficiary within the contemplation of section 4(1) of the Fatal Accidents Act…. I therefore find and hold that the learned magistrate erred in calculating damages on the basis that the deceased died at the age of 25 and “supported his mother and siblings” for two reasons. First, the persons set out as dependants in the plaint were not dependants within the meaning of section 4(2) of the Fatal Accidents Act. Second, the mother of the deceased was not pleaded in accordance with the provisions of section 8 of the Fatal Accidents Act. It must now be clear that the claim under the Fatal Accidents Act could not be sustained. I therefore set it aside and dismiss that aspect of the claim.

7. It was further submitted that the chief`s letter filed by the respondent did not mention the existence of any dependant. That the respondent did not call any witness to testify of his relationship with the respondent. It was consequently submitted that the trial court erred in law by awarding Ksh.3,500,000/= under the loss of dependency when the respondent was an uncle to the deceased who does not fall under the four corners of section 4(1) of the Fatal Accidents Act.

8. It was submitted that had the respondent been a beneficiary to the estate of the deceased under the provisions of the Fatal Accidents Act, an award of Ksh.500,000/=would have been sufficient as a global award. The Appellant relied on authorities where awards of Ksh.300,000/= and Ksh.500,000/= were made.

9. The appellant in conclusion submitted that the award on loss of dependency was misconceived. They urged the court to set aside the award.

10. The respondent on the other hand submitted that at the time of the incident, the law that was applicable was the Wildlife Conservation and Management ActNo.47 of 2013 which provides for compensation resulting from injury and death resulting from attacks by wild animals. The respondent relied on the case of Joseph Munyoki Kalonzo v Kenya Wildlife Service, Civil Case No.5 of 2014, which judgment was confirmed by the Court of Appeal, where the High Court in a case of death arising from a crocodile attack the court awarded Ksh.5,000,000/= in compensation under section 25 of the Wildlife Conservation and Management Act and held that:In my view, the plaintiff is entitled to compensation under the Wildlife Conservation and Management Act 2013, which is the specific Act that deals with accidents and fatalities associated with wildlife conservation, and the deceased was killed by wildlife. Since the Act is also a more recent law, “it has to be the guide in determining awards for damages or death, or injuries caused by wildlife, as Parliament has it its wisdom decided to treat damage, injuries and deaths cause by wildlife differently. The general law under the Fatal Accidents Act and Law Reform Act cannot thus be used in determining damages as Parliament has made specific provisions for the same under the Act of 2013.

11. The respondent urged the court to uphold the award and dismiss the appeal.

Analysis and Determination 12. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

13. The appeal herein is on award of damages. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate 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 at first instance. The appellate court can justifiably interfere with the quantum of damages 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 factor 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.”

14. The advocates for the respondent submitted before the lower court that the respondent was entitled to be compensated under the Wildlife Conservation and Management Act and accordingly asked the court to award Ksh.5,000,000/= under the said Act. The trial magistrate in his judgment stated that the amount the respondent was asking was on the higher side and awarded Ksh.3,500,000/=. The advocates for the respondent submitted in this appeal that the applicable law at the time the incident took place is the Wildlife Conservation and Management Act. In their submissions both at the lower court and in this appeal, they relied on the case of Joseph Munyoki Kalonzo (supra) where an award of Ksh.5,000,000/= was made under the WCMA.

15. Counsel for the Appellant on the other hand submitted that the award of Ksh.3,5000,000/= was awarded as a global award for loss of dependency.

16. The issues for determination are:(1)Whether the Wildlife Conservation and Management Act was the applicable law in making the award in this case.(2)Whether the award for loss of dependency was sustainable under the law.

17. The trial magistrate in his judgment did not expressly say that his award was made under the WCMA. I do not agree with the submission by the respondent that the respondent was entitled to compensation under the WCMA for the reason that the WCMA was not pleaded in the plaint. The claim pleaded in the plaint was for negligence as known under the common law. It is trite that parties are bound by their pleadings. In the case of Catherine Kanyua Gatuura & Josphat Mwathi Kiuru (appearing as legal representative of the deceased one Peter KiuruMuchomba v Kenya Wildlife Service (2020) Eklr, where Limo J. considered whether a similar case should have be determined under statute or common law held that:This court has perused through the plaint filed in the subordinate court and it is clear that the claim filed was purely a common law claim. The Appellants never pleaded that their suit was based on Section 25 (1) of the Statute or sought a declaration that the Respondent ought to compensate them as provided by the statute. This court finds that the Appellants omission in that regard rendered their claim a common law claim which meant that the trial court could only exercise its discretion under common law and given an award based on the evidence tendered. The provisions of order 2 Rule 4 of the Civil Procedure Rule made it mandatory for the Appellants to plead their claim specifically which they did by implying in their pleadings that their claim was based on common law. I agree with the Respondent that having specifically implied that their claim was under common law they cannot turn back and say that the trial court should have given them an award that was not pleaded. The reason for that is simple. Pleadings must be specific and open in order to give the opposite side a fair chance to defend itself….This court finds that contrary to the Appellant's contention, the trial court properly directed itself that it was dealing with a common law claim like any other claim because that is what was pleaded. A party is always bound by his/her pleadings and it would have amounted to a departure if the trial court were to decide that the claim was statutory or declaratory when it was clearly not.

18. I am in agreement with this legal position. The respondent cannot have pleaded his case under common law and midway during submissions turn the claim to one made under the WCMA. It is trite that submission do not constitute evidence and thereby cannot be used to support what is not pleaded - see Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another (2014) eKLR. I therefore do not agree with the advocates for the respondent that the respondent was entitled to compensation under the WCMA. It is to be noted that the pleadings in the case of Joseph Munyoki Kalonzo that the respondent made reliance on were, in the first place, made under the WCMA and then under the Law Reform Act and Fatal Accidents Act. The court in that case therefore rightly made the award under WCMA. I do not agree that the law as provided in WCMA was the applicable law in this case.

19. In making an award of Ksh.3,500,000/- the learned trial magistrate stated that there was no evidence on the earnings of the deceased and therefore that the global method of approach was the more suitable one in deciding the amount of damages to be awarded to the deceased. Global method of approach is applied in making awards for loss of dependency. I therefore find that the award for Ksh.3,500,0000/= was made on loss of dependency.

20. The appellant submitted that the award for loss of dependency was erroneous as the respondent did not prove that he was a beneficiary to the estate of the deceased as required under section 4(1) of the Fatal Accidents Act which sets out persons who can benefit for an award made under the section as the wife, husband, parent and child of the deceased. That the beneficiaries of the deceased`s estate were not pleaded in the plaint as required under section 8 of the said Act.

21. I have considered the issue raised herein on the respondent`s relationship with the deceased. Section 4 Fatal Accidents Act provides as follows: -“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parents and child if the person, whose death was so caused and shall, subject to the provisions of Section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgement shall find and direct.”

22. The respondent herein confirmed during cross-examination that he was an uncle to the deceased. An uncle is not one of the persons mentioned in section 4(2) of the Fatal Accidents Act as one of the people who can prima facie benefit from the estate of a deceased – see the decision in the case of Aphia Plus (supra). Further to this, the beneficiaries of the estate of the deceased were not pleaded in the plaint as required by section 8 of the above said Act. In Pleasant View School Limited v Rose Mutheu Kithoi & another [2017] eKLR where the plaintiff was a brother to the deceased, the court held that he was not permitted to obtain the benefits from the deceased`s estate personally and could only sue as an administrator of the estate of the deceased. The court consequently held that;“Indeed, it is trite law that dependency is a matter of fact and must be proved. It must be demonstrated that persons for whose benefit the proceedings are brought under the Fatal Accidents Act were dependant on a deceased prior to his death.”

23. In Mohamed Hirbo Shande & another v George Mwenda Mwiti (Legal Representative of the Estate of Miriam Makena) [2021] eKLR where the beneficiaries were named as brothers and sisters of the deceased, Muriithi J. while dismissing the claim held as follows:There is no mention of brothers and sisters of a Deceased, and the Court, therefore, finds that no damages were awardable for loss of dependency. In so finding, I respectfully agree with the finding of Majanja J in the case of John Mungai Kariuki & Another v Kaibei Kangai Ndethiu & 2 Others Kiambu Civil Appeal No. 29 of 2018 at paragraphs 12 to 15 thereof where it was held that: -‘…. Back to the issue at hand, the appellants elected to make their case under the Fatal Accidents Act which at section 4(1) states;Every action brought by nature of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused [and shall …. be brought by and in the name of the execution or administrator of the person deceased] ……The brothers and sisters of the deceased are not dependants for purposes of the statute and language of the statute cannot be read, even by creative interpretation, to expand the list of dependants to include siblings of the deceased. Even in the cases relied on by the appellant, the principle that in African culture children are expected to support their parents is supported by the words of the statute as the deceased parents are named a dependants….…. For the reasons I have set out above, the trial magistrate did not err in failing to award damages for loss of dependency and for lost years as urged by the appellants….’See also Ishmael Nyasimi & another v David Onchangu Orioki suing as personal representative of Antony Nyabando Onchango Civil Appeal No. 98 of 2016 (Deceased) [2018] eKLR.

24. It can therefore be said that the respondent as an uncle to the deceased was not a beneficiary to the estate of the deceased in terms section 4(1) of the Fatal Accidents Act. However, the problem in this case is that parties recorded a consent order on liability in the ratio of 80: 20 in favour of the respondent. Can the court then during assessment of damages set aside the consent order?

25. The grounds under which a consent order may be set aside include fraud, collusion or by an agreement contrary to policy of the court. In the case of Flora N. Wasike v Destimo Wamboko (1988] eKLR, Hancox JA discussed the setting aside of consent orders and cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”See also Harris J. in Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [1982] KLR 485 and Board of Trustees National Social Security Fund versus Micheal Mwalo [2015] eKLR.

26. In this case there is no allegation of fraud, collusion, etc. There is in fact no application to set aside the consent order on liability. There is then no basis for this court to interfere with the consent freely entered into between the parties. The consent order therefore stands.

Quantam 27. The appeal herein is on the amount of quantam awarded by the trial court on loss of dependency. The trial court awarded Ksh.3,500,000/= for loss of dependency. The appellant submitted that the award was inordinately excessive and proposed a global sum of Ksh.500,000/=. They relied on the following authorities:a)Kenya Power Lighting Co. v Charles Obeya Ogeta (Suing as a legal representative of the estate of Esther Nyanchoka Obegi (2016) eKLR where a global sum of Kshs. 300,000/= was awarded for the death of a 47-year-old.b)Muitga Kamai v Joshua Kinyua Kamange (suing as administrator and legal representative of the estate of Elijah Kamange (Deceased) (2021) eKLR where the court set aside the award of Kshs. 2,500,000/= and substituted it with a global sum of Kshs.500,000/- was awarded for the death of a 28-year-old.c)Dismus Omolo Odongo &another Interior Inspirations Ltd&2 other (2017) eKLR where the High Court upheld an award of Kshs. 500,00/- as a global sum under the loss of dependence as the real earnings of the deceased could not be ascertained who passed on at the age of 21year old.

28. The trial magistrate seems to have been influenced by the award in the case of Joseph Munyoki Kalonzo (supra) when he made the award of Ksh.3,500,000/=.

29. The deceased herein died at the age of 18 years. He was a herder. His salary could not be ascertained and it was therefore proper for the trial court to resort to the global method of approach in making the award. I have considered the awards in the following authorities:- In Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR, Odunga J.(as he then was) upheld an award of Ksh.1,500,000/= for loss of dependency.- Similarly, in Joseph Maroa Wambura v Stellah Chepkurui Rere & another [2021] eKLR, Gikonyo J. upheld an award of Ksh.1,500,000/= for loss of dependency.- In the latter case, the court cited the case of Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR where the court awarded a global sum of Ksh.1,500,000/= for loss of dependency.

30. In view of these authorities, I consider a sum of Ksh.1,500,000/= to be sufficient award for loss of dependency in this matter.

31. The upshot is that the appeal succeeds to the extent that the award of the trial court of Ksh.3,500,000/= on loss of dependency is set aside and substituted with one of Ksh.1,500,000/= (subject to consent on liability). As the appeal has partly succeeded, I order each party to bear its own costs to the appeal.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 14TH DECEMBER, 2023J. N. NJAGIJUDGEIn the presence of:Miss Gitari for AppellantMr. Amule for RespondentRespondent – presentCourt Assistant – Jarso30 days R/A.