[2021] KEHC 9464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

HIGH COURT CIVIL APPEAL NO. 69 OF 2018

KYOGA HAULERS (K) LTD.....................................APPELLANT

VERSUS

JOB KHAEMBA TOROFU (suing as administrator of the estate of

CHRISTINE NEKESA JUMA(DCD).....................RESPONDENT

(This is an appeal from the judgment and decree in original Bungoma CMCC No. 196 of 2017 delivered on 28. 9.2018 by HON. C.A.S MUTAI Senior Principal Magistrate)

JUDGMENT

This is a claim by the Respondent JOB KHAEMBA TOROFU (suing as the administrator of the estate of Christine Nekesa Juma deceased) seeking general damages under the Reform Act and Fatal Accident Act. The claim by the respondent in the plaint dated 30th May 2017 was that the deceased who was his wife was walking along Kanduyi Malaba road on 20. 4.2017 when the appellant’s driver driving motor vehicle Registration NO. KBF 322K hauling trailer ZB 2166 veered off the road and knocked her causing her to sustain injured from which she died. The parties agreed on liability at 85:15 ratio. The Appellant to bear 85% liability and the respondent 15% contribution.

The only issue for determination by the trial court was on assessment of damages. On this issue the learned trial magistrate in his judgment stated:

In view of the concerns raised by both counel in this case I will make an award under the minimum wages Act where a figure of Kshs 10,000/= has been a conventional figure.

This would therefore be calculated as follows 10,000x12x30x2/3 = Kshs 2,400,000.

Judgment shall be entered in summary as follows:

10,000x12x30x2/3=Kshs 2,400,000/=

Special damages

a. Receipt for grant Kshs 20,000/-

b. Receipt for transport of body Kshs 30,000/-

c. Receipt for coffin Kshs 28,000/-

d. Receipt for motor vehicle search Kshs 500/-

TOTAL Kshs 78,500/-

In summary total figure shall be

a. Loss of expectation of life Kshs 200,000/-

b. Pain and suffering Kshs 35,000/-

c. Loss of dependency Kshs 2,400,000/-

d. Special damages Kshs 78,500/-

TOTAL Kshs 2, 713,500/-

Less 15% Kshs 40,7025/-

TOTAL Kshs 2 ,306,475/-

The appellant was dissatisfied with the judgment and decree precipitating this appeal. The appellants grounds of appeal are:-

1. That the learned trial magistrate erred in law and fact in applying the wrong principles of law in the assessment of damages.

2. That the learned trial magistrate erred in law and fact in awarding damages that were so inordinately high as to amount to a gross overestimate of the loss suffered by the estate of the deceased.

By consent the appeal was canvassed by way of written submission. Mr. Manani for the appellant submitted that the award of kshs 2,400,000 under the head of Loss of dependency was too high and the court erred in adopting the multiplicand of 12,000 and multiplier of 30 years. He submitted that the deceased died at age 40 years and monthly income was 15,000. He submits hat the Respondent did not prove marriage to the deceased, or that he is the father of the son aged 12 years as no birth certificate was produced. In particular the appellant counsel submitted:-

“That the trial court misdirected itself in using multiplicand of Kshs 10,000/- and two-thirds multiplier. The appellant submits that the amount and dependency principle had no basis. It is impossible to tell what the deceased earned, what and how much she contributed to her dependent, if any. The court had no evidence to conclude existence of dependency. The award on this heading was speculative and unreasonable. In sum, it is not clear how the trial magistrate used the multiplier method without engaging in fanciful speculations hence arriving at an erroneous amount which the Appellant beseech this court to interfere with”.

Mr. Mukisu for the respondent submitted that the appellate court can only interfere with the discretion of the trial magistrate on assessment of damages on known grounds. He submitted that the trial magistrate applied correct principles in assessment of damages under the Law Reform Act and the Fatal Accident Act. He submitted that the damages awarded were not inordinately high and that the same were fair and reasonable.

This is a first appeal. The duty of the first appellate court is to re-evaluate the evidence before the trial court, assess and analyse the same and arrive at its own conclusion but always bearing in mind that it did not see or hear the witnesses testifying.

In this appeal the parties agreed on liability. The appellant is inviting this court to interfere with the quantum of damages awarded by the trial court. The principles upon which an appellate court would interfere with the award s of damages were stated in Kemfro Agro Ltd T/A Meru Express services (1976) and another –vs- Lubia & Another. (1982-1988) 1KAR 727 where Kneller J stated.

“The principles to be observed by an appellate court in deciding whether itis justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either the judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

The appellant in this appeal contends that no evidence of earning of the deceased was not tendered, and the trial magistrate erred in adopting the multiplicand of Kshs 10,000 without basis.

Upon perusing the evidences, I find that the trial magistrate appreciated the fact that no documents were produced to confirm income from the business deceased was engaged in. that is the reason he rightly in my view opted to adopt Government minimum wage applicable at that time. This approach cannot be said to be erroneous as it is based on Government Minimum Wages Regulations Published by the Ministry of Labour and is the best guide when there is no documents to show income and expenditure returns from a business, and therefore net earning of the proprietor of the business.

In the upshot I do not find that the appellant has proved any grounds for me to accept the invitation to interfere with the quantum of damages awarded. I find no merit in this appeal which is hereby dismissed with costs.

Dated andDelivered at Bungoma this 2nd day of February, 2021

S.N. RIECHI

JUDGE