[2022] KEHC 11553 (KLR)

Kirema & another v RM ((Suing as the Legal Representative of the Estate of DM – Deceased)) (Civil Appeal E009 of 2021) [2022] KEHC 11553 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11553 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E009 of 2021

LW Gitari, J

May 16, 2022

Between

Nicholas Mwathi Kirema

1st Appellant

Momentum Credit Limited

2nd Appellant

and

RM

Respondent

(Suing as the Legal Representative of the Estate of DM – Deceased)

Judgment

1. This appeal arises from the judgment and decree in Marimanti Senior Resident Magistrate’s Court Civil Case No. E006 of 2020 in which was instituted by the respondent against the appellants for damages arsing from a road traffic accident which had occurred on 18/8/2020. Judgment on liability in favour of the respondent was entered in the ratio of 90:10. The court eventually gave Judgment and made an award in the following terms:a.Liability at 90:10 in favour of the Respondent as against the Appellants,b.Pain and suffering at Kshs. 100,000/=,c.Loss of expectation of life at Kshs. 150,000/=,d.Loss of dependency at Kshs. 1,200,000/=,e.Special damages at Kshs. 86,450/=,f.Costs of the suit.

2. The appellants being dissatisfied with the award on loss of dependency and special damages, filed the instant appeal vide the Memorandum of Appeal dated June 24, 2021. The appeal raises 3 (three) grounds. These are:a.That the learned trial Magistrate erred in law and fact by awarding general damages for loss of dependency in the sum of Kshs. 1,200,000/= which award is inordinately excessive in the circumstances of the matter.b.That the learned trial Magistrate erred in law and fact by awarding special damages of Kshs. 20,000/= which were not strictly proved as required by law.c.That the award of the learned trial Magistrate is against the law and weight of evidence on record.

3. The appellants thus prays for an order setting aside the trial court’s award on loss of dependency and special damages be set aside, and an assessment by this court of reasonable amounts of damages to be awarded to the respondent. The appellants also prays to be awarded the costs of the appeal.

4. The appeal was canvassed by way of written submissions.

5. The appellants filed their written submissions jointly on December 22, 2021. It was their submission that the trial court erred in awarding loss of dependency and applied wrong principles in the assessment of damages. The Appellants contend that the trial erred in relying on the case of Chen Wembo & 2 Others v IKK & another (suing as the legal representatives and administrators of the estate of CRK (Deceased) [2017] eKLR as the deceased in that decision was a minor aged 12 years while the deceased in this case was a minor aged 6 years. They faulted the trial court disregarding the authorities submitted by the Appellants such as Anthony Mathenge Waranga & Another v A W [2018] eKLR and Rosemary Onyango & Another v Mohamed Jenjewa Ndoyo & Another [2019]eKLR.

6. On his part, the Respondent filed his written submissions on 7th February 2022. On the award of special damages, it was the Respondent’s submission that the trial court was justified in awarding the sum of Kshs. 20,000/= as special damages. According to him, the trial correctly presumed that the process of obtaining a legal grant costs money. Further the Respondent submitted that the issue of lack of receipts to prove special damages should not be raised in this appeal as the same was never raised before the trial court.

7. On the award of general damages for loss of dependency, the Respondent noted that the authority that the trial court relied on in reaching the award under this head was supplied by the Appellants. This is the case of Chen Wembo & 2 Others v IKK & another (suing as the legal representatives and administrators of the estate of CRK (Deceased) [2017] eKLR. He thus urged this court to affirm the award of Kshs. 1,200,000/= under this head.

Issues for determination 8. The issues for determination, which have emerged from the pleadings and written submissions, are:a.Whether the award of Kshs. 1,200,000/= as general damages for loss of dependency is in ordinately excessive in the circumstances of this case.b.Whether the special damages of Kshs.20,000/- had been strictly proved.

Analysis 9. As a first appellate court, this court has a duty to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions but bearing in mind that this court did not have the opportunity of seeing and hearing the witnesses firsthand. This duty was stated in the case of Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123 in the following terms:“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 EACA 270).”

10. Liability in this case is not disputed. The final judgment on same was reached by consent of the parties. What is in dispute is the award of quantum specifically under special damages and general damages for loss of dependency.The Court of Appeal in Catholic Dioces of Kisum v Sophia Achieng Tele C.A. No.284/2001 (2004) KLR 55 set out the circumstances under which an appellate court can itnerfere with an awared of damages. The Court of Appeal stated-“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 couart 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 or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneious estimate.”

11. The Court of Appeal, in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR, set out the parameters within which an appellate court will interfere with an award of general damages, when it stated:“An appellate court will not disturb an award for general 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 at a figure which was either inordinately high or low...”

12. The same position was reiterated in Loice Wanjiku Kagunda v Julius Gachau Mwangi CA 142/2003 (UR), by the same court, when it said:“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga v Musila [1984] KLR 257).”

13. Similar sentiments were expressed in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where the Court of Appeal said:“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.”See also Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR; Ilango v Manyoka [1961] E.A. 705; Lukenya Ranching and Farming Co-Operatives Society Ltd v Kavoloto [1970] EA 414; Johnson Evan Gicheru v Andrew Morton & another [2005] eKLR; and Peter M. Kariuki v Attorney General [2014] eKLR.

14. The foregoing decisions set out the law and the guiding principles, which this court bound to apply the determination of this appeal.The appellants have taken issue with the award of damages for loss of dependancy and contend that the award that the award of Kshs.1,200,000/- is inordinately excessive in the circumstances of this matter. The appellant submits that the deceased was six years at the time he met the untimely death. They take issue with the award contending that the trial magistrate erred by relying on the decision of Chen Wembo & 2 Others v 1KLR & Another (2017) eKLR whereby the deceased in the said deciion was a minor aged twelve years (12) years. To this they add the award was against the weight of the evidence and that the trial magistrate disregarded the binding authorities cited by the appellants which were analogous to the circumstances of this case. In particular the appelalnt take issue that the trial magistrate disregarded the authority of Antony Mathenge Waranga & Another v AW (2018) eKLR where the court awarded a global sum of Kshs.420,000/- where the deceased died aged six (6) years. The trial magistrate while holding that the proper approach is to award a global figure, went on to state-“In the circumstances, I award Kshs.1,200,000/- guided by authority in Chen Wembo & 2 Others v 1KLR & Another (2017) eKLR where the court awarded Kshs.600,000/- as lost years and also noting that this was in 2014. ”The lower court is guided by the authorities persented befor it by the parties to arrive at the award.

15. There is no golden rule in the assessment of damages in respect of a deceased minor. Courts have adopted different approaches to the matter. Some award damages under the separate heads of pain and suffering and loss of dependency, others adopt the award of a global sum approach, while others adopt a mixed approach combining both. Parties herein agreed that the global sum approach was the most appropriate in the circumstances of this case. Below is an analysis of the trial court’s awards under the two impugned heads.

Loss of dependency 16. In the lower court, the Appellants relied on the authorities of Anthony Mathenge Waranga & Another v A W [2018] eKLR where the deceased died aged 6 and the court awarded a global sum of Kshs. 420,000/=; and Rosemary Onyango & Another v Mohamed Jenjewa Ndoyo & Another [2019]eKLR where the deceased died aged 7 and the lower court award of Kshs. 1,000,000/= was substituted with an award of Kshs. 500,000/=. The Appellants thus proposed an award of Kshs. 400,000/= under this head.

17. In their submissions to this appeal, the Appellants have introduced new authorities urging this court to consider the same. These include Fredrick Bundi Ruchia & another v S.M.M. (Suing as legal representative of the Estate of JMM) [2019] eKLR and the case of H.K.M. v Francis Mwongela Mabere [2017] eKLR. The respondent submits that the parties are bound by their pleadings and that this court should disregard the authorities which have been introduced on appeal. Pleadings are defined under Section 2 of the Civil Procedure Act (Cap 21 Laws of Kenya) as follows:-“Pleadings include a petition or summons, and statements in writing of the claim or demand or any plaintiff and of the defence of any defendant thereto and of the reply of the plaintiff to any defence or counter claim of a defence.”Submissions are arguments written or oral outlining each party’s points of law. They do not fall under the definition of pleadings and are therefore not pleading. Pleadings as can be seen from the definition puts in motion the claim and the defence attracted by that claim. When a party in his submissions relies on a decision of court superior to the one he presents those submissions, that decision is a judicial precedents which binds the lower court. My view is that nothing bars a party from relying on a judicial precendent simply because it was not submitted in the lower court. The parties in this appeal agreed to put in written submissions. They are not barred from citing authorities other than those they relied on in the lower court. As observed above the appellate court has a duty to re-evaluate the evidence and come up with its own findings. The submissions by the respondent that the appellant could not introduce new authorities in this submissions cannot be upheld.

18. On its part, the Respondent relied on the case of Daniel Mwangi Kimemi & 2 others v J G M & another (the personal representatives of the estate of N K (DCD) [2016] eKLR where the court awarded KShs. 1,000,000/= for loss of dependency for the death of a 9-year-old way back in 2016.

19. In light of the authorities relied on I find that the trial coaurt acted on the correct principles in as far as he applied a global sum in arriving at the award. I however find that the trial magistrate erred in making an award which was in -ordinately high. The justification that the decision he relied on, Chen Wembo & 2 Others v 1KKK and Another was a 2014 decision cannot be supported. There was no reason given for arriving at an award which was double the amount of the decision he relied on. In Fredrick Bundi Ruchia & Another v SMM (suing as legal representative of the Estate of SMM (2019) eKLR, Kshs.70,000/- was upheld in a minor aged five years.In H.K.M v Francis Mwongera Mabere (2017) eKLR the court awarded Kshs.200,000/- for loss of dependency for a deceased minor aged seven years. These are recent decision. When awarding damages the trial magistrate must reach a figure that is in line with recent ones in cases with similar circumstances. The court will interfere with the discretion of the trial court where the award is inordinately high. See Catholic Diocese of Kisumu v Sophia Achieng Tele C.A. No. 284 (2004) 2 KLR 55 where the Court of Appeal stated that the appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied what the trial court arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. In this case the learned trial magistrate had no reason to double the award but ought to rely on the authority. There was no reason given for doubling the amount as it lead to making an awarded which was in-ordinately high.I therefore find reason to interfere with the award of damages. The trial court ought to have been guided by the authority of Chen Wembo & 2 Others v 1KK & Another and awarded kshs.600,000/- without unrealistic multiplication.

Special damages 20. The time-tested principle on special damages is that they should not only be specifically pleaded but must also be strictly proved.

21. In awarding a total of Kshs. 86,450/= pleaded as special damages, the trial court stated as follows:“The plaintiff pleaded Kshs. 86,450 managed to strictly prove a total of Kshs. 66,450/- and record is there for all to see. However, I also award Kshs.20,000/- legal fees claimed though not strictly proved since anyway the plaintiff someway spent some legal fees in securing letter of administration on record. The amount of Kshs.20,000/- is fair and reasonable.”

22. The Court of Appeal in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR stated as follows:“We are of course aware of the court occasionally loosening this requirement when it comes to matters of common notoriety for example a claim for special damages on burial expenses where the claimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein did not fall in that class.”

23. The question in this appeal, then, is whether the trial court should have relaxed the strict rule on proof of special damages in the circumstances of this case. Advocates are deemed to know even better than lay men. The claim of incurring legal fees should have been strictly proved. As such the award of Kshs. 20,000/= was not based on sound legal principles. It therefore cannot be upheld. The trial magistrate erred by awarding special damages which were not strictly proved. The award cannot therefore be upheld.

Conclusion 24. The upshot is that this appeal succeeds. I order as follows: -1. The award of Kshs.1,200,000/- general damaged for loss of dependency is set aside.2. It is substituted with an award of Kshs.600,000/- damages for loss of dependency.3. The award of Kshs.20,000/- special damages for legal fees is set aside.4. The appellant to get half the costs of this appeal.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MAY 2022. L.W. GITARIJUDGE