[2022] KEHC 12989 (KLR)

Kunga v Mangura (Civil Appeal E041 of 2021) [2022] KEHC 12989 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12989 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E041 of 2021

JN Kamau, J

September 19, 2022

Between

Damacline Kwamboka Kunga

Appellant

and

Caroline Moraa Ogata & William Mangura Nyamwaya ( Suing as the Personal Representatives of the Estate of Lawrence Ogata Mangura)

Respondent

(Being an appeal from the Judgment and decree of Hon B M Kimutai (SPM) delivered at Nyamira in Chief Magistrate’s Court Case No 98 of 2019 on May 11, 2021)

Judgment

Introduction 1. In his decision of May 11, 2021, the Learned Trial Magistrate, Hon B M Kimutai, Senior Principal Magistrate entered judgment in favour of the Respondent herein against the Appellant herein as follows:-Loss of dependency Kshs 2,400,000/=2/3 x 10,000 x 12 x 30Pain and suffering Kshs 150,000/=Loss of expectation of life Kshs 150,000/=Special Damages Kshs 82,500/=Plus costs of the suit and interest thereon.

2. Being aggrieved by the said decision, on July 21, 2021, the Appellant herein filed a Memorandum of Appeal dated July 15, 2021. She relied on ten (10) grounds of appeal.

3. The Appellant’s Written Submissions were dated April 21, 2022 and filed on April 27, 2021 while those of the Respondent were dated March 25, 2022 and filed on March 30, 2022.

4. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

6. This was aptly stated in the case of Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court is not bound necessarily to accept the findings of fact by the court below and that on appeal while it must reconsider the evidence, evaluate it itself and draw its own conclusions, it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the only issue that had been placed before it for determination was whether or not the Learned Trial Magistrate awarded the Respondents damages that were inordinately high and/or excessive so as to warrant interference by this court. The court therefore dealt with all the Grounds of Appeal together as they were related but under the separate and distinct heads shown hereunder.

A. Pain And Suffering 8. The Appellant submitted that despite the conventional award for pain and suffering being between Kshs 20,000/= and Kshs 100,000/=, the Learned Trial Magistrate awarded the Respondents a sum of Kshs 150,000/=. In this regard, she placed reliance on the case of Hyder Nthenya Musili & Another v China Wu Yi Ltd & Another [2017] eKLR which was cited in the case of Ainu Shamsi Hauliers Limited v Moses Sakwa & Another (Suing as the Administrators of the Estate of Ben Siguda Okach (Deceased) [2021] eKLR where the court therein held that the conventional award for pain and suffering was between Kshs 10,000/= and Kshs 100,000/=.

9. On their part, the Respondents submitted that the award of Kshs 150,000/= for pain and suffering was adequate. They relied on the case of David Kahuruka Gitau v Nancy Ann Wathithi Gitau & Another[2016] eKLR where the court awarded a sum of Kshs 100,000/= for pain and suffering where the deceased died after thirty (30) minutes.

10. A perusal of the Plaint that was dated and filed on August 6, 2019 showed that Lawrence Ogata Mangura (hereinafter referred to as “the deceased”) died on January 6, 2019 on the same date he was involved in a fatal road accident with the Appellant’s Motor Vehicle Registration Number KCL 342S ( hereinafter referred to as “ the subject Motor Vehicle”) which hit Motor Cycle Registration Number KMDU 699K (hereinafter referred to as “the subject Motor Cycle”) that he was riding along Kisii- Keroka Road at Otange area.

11. In the case of David Kahuruka Gitau vs Nancy Ann Wathithi Gitau & Another (Supra), the court awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident.

12. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR and Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & Another [2021] eKLR, the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.

13. As was held in the case of Kiwanjani Hardware Limited & Another vs Nicholas Mule Mutinda[2008] eKLR, an appellant court will not disturb an award of damages unless the same is inordinately low or high so as to represent an erroneous estimate or was based on an entirely wrong principle.

14. Notably, there is no specific award for pain and suffering and the trial court has the discretion of awarding any figure provided that the same is comparable to similar awards. Although a sum of Kshs 150,000/= was not inordinately high or manifestly excessive because no amount of money can be equated to a loss of life, there was need to reduce the said sum to allow so that such a figure can be awarded in cases where a deceased had suffered for some time before succumbing to his or her injuries.

15. Indeed, courts must be conservative and exercise restraint in awarding high sums to avoid pushing up insurance premiums to the detriment of fare paying passengers in public vehicles who would have to pay higher fares to travel and to the detriment of insureds of private motor vehicles who would have to dig deeper in their pockets to pay premiums to keep their vehicles on the roads.

16. Accordingly, bearing in mind the inflationary trends, this court came to the conclusion the sum of Kshs 20,000/= that the Appellant had proposed was too low but that a sum of Kshs 50,000/= for pain and suffering was more fair compensation as there was no evidence that that the deceased died several hours or days after he was involved in the accident herein. The award of Kshs 150,000/= that had been awarded by the Learned Trial Magistrate for pain and suffering would have been adequate if the deceased had died several hours or days after the accident.

B. Loss Of Exepectation Of Life 17. The Appellants had submitted that a sum of Kshs 500,000/= for loss of expectation of life was too excessive warranting interference by the court. In this regard, it placed reliance on the case of Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR (Deceased)[2020] eKLR where the court therein awarded a sum of Kshs 100,000/ for loss of expectation of lie.

18. On the other hand, the Respondents submitted that the sum of Kshs 150,000/= under this head was adequate compensation. They placed reliance on the case of Chen Wembo & 2 Others vs IKK & Another (Suing as the Legal Representatives of the Estate of CRK (Deceased) [2017] eKLR where the court therein awarded a sum of Kshs 80,000/= under this head.

19. In the case of Kiwanjani Hardware Limited & Another vs Nicholas Mule Mutinda [2008] eKLR that was relied upon by the Respondents herein, it was held that an appellant court will not disturb an award of damages unless the same was inordinately low or high so as to represent an erroneous estimate or was based on an entirely wrong principle.

20. It appeared to this court that the Appellant had focused on the sum of Kshs 500,000/= for loss of expectation of life as was indicated in the undated Decree. She did not appear to have challenged the award in the sum of Kshs 150,000/= which was shown in the Judgment of the Learned Trial Magistrate making it difficult for this court to ascertain whether or not she still wished this court to analyse the said figure.

21. Consequently, and without belabouring the point but taking into account comparable awards and inflationary trends, it was the considered view of this court that a sum of Kshs 150,000/= that was awarded by the Learned Trial Magistrate for loss of expectation of life was not excessive and/or manifestly high as have warranted interference by this court.

22. In arriving at this conclusion, this court had due regard to the comparable case of Jackson Kariuki Ndegwa (suing as the administrator of the estate of Fabius Munga Kariuki vs Peter Kungu Mwangi[2016] eKLR where the court therein awarded a sum of Kshs 150,000/= under this head.

C. Loss Of Dependency 23. The Appellant submitted that the court ought to have awarded a global sum of Kshs 800,000/= as the Respondents did not provide proof of the deceased’s income as a boda boda rider. She referred this court to the case of Mary Khayesi Awalo & Another v Mwilu Malungu[1999] eKLR where the court therein adopted the principle of a lump sum figure instead of estimating the deceased’s income in the absence of proper accounting books.

24. This court found it prudent to address the claim for loss of dependency under the distinct heads to ascertain whether or not the Learned Trial Magistrate applied wrong principles in having awarded the sum of Kshs 2,400,000/= under this head.

AA. Multiplicand 25. The Respondents submitted that the deceased used to earn a sum of Kshs 20,000/= per month at the time of his death as a boda boda rider. They relied on the case of Jacob Ayia Mayuga & Another v Simeon Obayo [2005] eKLR where the Court of Appeal held that documentary proof was not the only way to prove a deceased’s income and that taking that kind of stand would cause grave injustice to very many Kenyans who do not keep records.

26. They argued that the sum of Kshs 10,000/= that was adopted by the Learned Trial Magistrate was fair and in this respect, relied on the case of Pleasant View Ltd vs Rose Mutheu Kithoi & Another [2017] eKLR where the court adopted a similar figure. They pointed out that the Appellant had in the lower court relied on the Legal Notice Kenya Gazette Supplement No 1 of 2019, the Regulation of Wages (General) (Amendment) Order, 2019 and proposed a sum of Kshs 7,290/=.

27. This court had due regard to the case of Jacob Ayia Mayuga & Another vs Simeon Obayo (Supra) in which it was held that it would cause such grave injustice to deceased persons in the informal sector who did not keep records and had no pay slips as some may be living hand to mouth absence of such documents did not mean that they did not eke and earn a living.

28. In view of the fact that the Respondents did not provide any evidence of the deceased’s income, this court found it more fair to adopt a minimum wage as it was more objective and quantifiable in determining the deceased’s wage at the time of his death. Indeed, a global figure was more subjective and not quantifiable with exactness and precision. It is for that reason that this court considered the minimum wage to assist it come to a fair and reasonable figure to calculate the deceased’s income.

29. In the Regulation of Wages (General) (Amendment) Order, 2017, that came into effect on May 12017, the minimum wages for general labourers in Nairobi was Kshs 12,926. 55. In the Regulation of Wages (General) (Amendment) Order, 2018 that came into effect on May 1, 2018, the minimum wage for general labourers in Nairobi was Kshs 13,572. 90. This is where the deceased would have been best placed considering that there was no scale for Boda Boda riders. Ordinarily, a basic minimum when adopted would be less contentious in calculating income for a person who had not been covered in the said Regulations.

30. Notably, the Appellant did not adduce any evidence to rebut the Respondents’ evidence that the deceased was a Boda Boda rider. He was expected to have earned some form of income. Absence of documentary evidence such as a payslip or records did not mean that he did not get an income from his Boda Boda business.

31. Bearing in mind the minimum wage as at the time of the deceased’s death, it was the considered view of this court that the adoption of Kshs 10,000/= his income by the Learned Trial Magistrate was not inordinately high and/or manifestly high to have warranted interference by this court.

BB Multiplier 32. According to the Certificate of Death that was tendered in evidence during trial, the deceased died at the age of twenty five (25) years, a fact that the 1st Respondent herein reiterated during her testimony. The Respondents did not cite any case law to support their argument that the multiplier of thirty (30) years that the Learned Trial Magistrate adopted be maintained.

33. Be that as it may, this court had due regard to the case FMM & Another vs Joseph Njuguna & Another [2016] eKLR in which the court therein adopted a multiplier of twenty three (23) years where the deceased was aged twenty six (26) years at the time of death.

34. Further, in the case of Solomon Ndungu Kabugi vs Zachariah Mureu Karume [2009] eKLR, the court adopted a multiplier of twenty (20) years where the deceased died aged thirty (30) years.

35. The retirement age in Kenya is sixty (60) years for most people in the public and private sectors of employment. Having been twenty five (25) years of age at the time of his death, the deceased would probably have worked for another thirty five (35) years in formal employment. However, he was self- employed where there was no retirement age.

36. Accordingly, taking into consideration the vagaries of life and in particular the risks involved as a boda boda rider, this court came to the conclusion that a multiplier of twenty five (25) years was reasonable. Notably, it came to a similar conclusion in the case of Evarastus Gichana Momanyi v Josephine Nyaboke Ondieki (Suing as personal representative and legal administrator of the Estate of Dadius Ondieki Migiro) [2022] eKLR where it adopted a multiplier of twenty five (25) years where the deceased was also aged twenty five (25) years. This court therefore left the finding of the Learned Trial Magistrate undisturbed

CC Dependency Ratio 37. The 1st Respondent adduced in evidence, a Chief’s letter dated June 21, 2019 indicating that the deceased had six (6) children with her. The Appellant did rebut this evidence.

38. Considering that the deceased had a family, it was expected that he would have used a third (1/3) of his income on himself and two thirds (2/3) on his family. In the absence of any evidence to the contrary, this court came to the firm conclusion that the Learned Trial Magistrate applied the law correctly when he adopted a dependency ratio of two thirds (2/3). Indeed, in the case ofChania Shuttle v Mary Mumbi[2017] eKLR, this very court found and held that the dependency ratio of two thirds (2/3) will be adopted where a deceased had minor children. This court therefore left the dependency ratio that was adopted by the Learned Trial Magistrate undisturbed.

DD. Special Damages 39. The Appellant did not appear to have disputed the sum of Kshs 82,500/= and the court did not therefore interfere with the same.

Disposition 40. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on June 7, 2021 was partly merited and the same be and is hereby allowed. The effect of this decision is that the Judgment and decree of Hon B M Kimutai (SPM) delivered at Nyamira in Chief Magistrate’s Court Case No 98 of 2019 on May 11, 2021 be and is hereby set aside, varied and/or vacated and replaced with judgment be and is hereby entered in favour of the Respondents herein against the Appellant herein for the sum of Kshs 2,282,500/= made up as follows:-Loss of dependency Kshs 2,000,000/=2/3 x 10,000 x 25 x12Pain and suffering Kshs 50,000/=Loss of expectation of life Kshs 150,000/=Special Damages Kshs 82,500/=Kshs 2,282,500/=Plus costs of the suit and interest thereon of court rates. Interest on special damages will be from date of filing suit while interest on loss of dependency, pain and suffering and loss of expectation of life will be from the date of the judgement herein until payment in full.

41. As the Appellant was only partly successful, each party will bear its own costs of this Appeal.

42. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF SEPTEMBER 2022J KAMAUJUDGE